People v. Dantzler

123 A.D.2d 327, 506 N.Y.S.2d 220, 1986 N.Y. App. Div. LEXIS 60102

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered March 19, 1982, convicting him of robbery in the second degree (two counts), assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law and as a matter of discretion in the interest of justice, by reversing the conviction of assault in the second degree as charged in the third count of the indictment, and vacating the sentence imposed thereon, and that count of the indictment dismissed. As so modified, judgment affirmed.

The third count of the indictment charging the defendant with assault in the second degree, pursuant to Penal Law § 120.05 (6), was an inclusory concurrent count of robbery in the second degree as charged in the first count of the indictment pursuant to Penal Law § 160.10 (2) (a). Therefore, the guilty verdict on the greater offense requires a dismissal of the lesser offense (CPL 300.40 [3] [b]; People v Wiley, 101 AD2d 818).

We have considered the defendant’s other contention and have found it to be without merit. Lazer, J. P., Mangano, Bracken and Kooper, JJ., concur.