People v. Cox

46 A.D.2d 641, 360 N.Y.S.2d 430, 1974 N.Y. App. Div. LEXIS 3754

Opinion

Judgment, Supreme Court, New York County, rendered on April 6, 1973, convicting defendant upon his plea of. guilty of robbery in the second degree and two counts of grand larceny in the third degree and sentencing him to concurrent terms of seven years on the robbery count and four years on each of the grand larceny counts, unanimously modified, on the law and in the interests of justice, so as to reverse the grand larceny convictions and dismiss those counts of the indictment and, as so modified, the judgment is affirmed. CPL 300.40 (subd. 3, par. [b]) provides in substance that a verdict of guilty on the greater of two or more inelusory concurrent counts of an indictment is deemed a dismissal of every lesser count submitted. In the case at bar defendant pled guilty to all counts in the indictment. CPL 220.10 (subd. 2) permits a defendant to plead guilty to the “ entire indictment.” Herein the grand larceny counts are inelusory concurrent counts of the robbery. While it is true that CPL article 300 pertains to jury trials, and while it is also true that under CPL 220.10, (subd. 2) a defendant may, as a mater of right (as he did in this case), plead guilty to the entire indictment except as provided in subdivision 3 not here pertinent, we deem that the policy considerations underlying the provisions of CPL 300.40 (subd. 3, par. [b]) should equally apply to convictions based upon guilty pleas so that defendants who plead guilty should not be subject to more severe sentences than those convicted of the same crimes after trial. Concur—MeGivern, P. J., Nunez, Kupferman, Murphy and Lupiano, JJ.