People v. Brewer

54 A.D.2d 839, 388 N.Y.S.2d 274, 1976 N.Y. App. Div. LEXIS 14591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1976
• Status: Published

Opinion

Judgments, Supreme Court, New York County, rendered November 20, 1973, convicting defendants, after a jury trial, of the crimes of robbery in the first degree, robbery in the second degree, two counts of grand larceny in the third degree, and possession of a weapon, unanimously modified, on the law, to the extent of reversing the convictions for two counts of grand larceny in the third degree and possession of a weapon, vacating the concurrent sentences imposed thereon, and dismissing those counts of the indictments, and, as so modified, the judgments are otherwise affirmed. On the facts of these cases, robbery in the first degree, grand larceny in the third degree, and possession of a weapon, were "inclusory concurrent counts” and, hence, a verdict of guilty on the robbery in the first degree count requires a dismissal of the lesser counts of grand larceny in the third degree and possession of a weapon, but not an acquittal thereon. (CPL 300.40, subd 3, par [b].) Accordingly, the conviction on the counts of grand larceny, third degree, and possession of a weapon, must be dismissed. (See People v Pyles, 44 AD2d 784.) We have examined the other points urged by appellants and find them without merit. Concur— Stevens, P. J., Markewich, Kupferman, Murphy and Silverman, JJ.