People v. De Gata

64 A.D.2d 929, 407 N.Y.S.2d 916, 1978 N.Y. App. Div. LEXIS 12813

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 14, 1978
• Status: Published

Opinion

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 23, 1976, convicting him of felony murder and robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of robbery in the first degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The only charges against defendant were felony murder and robbery in the first degree. Since no attempt was made to show specific intent to murder and defendant did not fire the fatal shot, the robbery count is a lesser inclusory offense of the felony murder count and must be dismissed (see People v Barnes, 60 AD2d 654). We have considered defendant’s other contentions and find them to refer to grievances which do not require reversal of the surviving charge (cf. People v Crimmins, 36 NY2d 230). Martuscello, J. P., Latham, Rabin and Hawkins, JJ., concur.