People v. Clark

50 A.D.2d 932, 377 N.Y.S.2d 606, 1975 N.Y. App. Div. LEXIS 11861

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 7, 1975, convicting him of murder, robbery in the first degree and possession of weapons and dangerous instruments and appliances, as a felony, and imposing sentence. Judgment affirmed. Robbery in the first degree as charged in the fourth count of the indictment was a lesser included offense of the felony murder charge in the second count thereof. Similarly, grand larceny in the third degree (count six) was a lesser included offense of the robbery charged in the third count of the indictment. The trial court correctly submitted to the jury the greater and the lesser counts in the alternative, thereby allowing a conviction on only one count, or an acquittal (see People v Williams, 47 AD2d 262). The verdict acquitting defendant of the lesser included counts was in accord with the charge, with the law and with the evidence. Martuscello, Acting P. J., Latham, Margett, Brennan and Shapiro, JJ., concur.