People v. De Jesus

46 A.D.2d 868, 362 N.Y.S.2d 9, 1974 N.Y. App. Div. LEXIS 3414

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1974
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County, rendered May 30, 1973, convicting defendant, after a jury trial of the crimes of sodomy in the first degree, sexual abuse in the first degree, sexual misconduct, and endandering the welfare of a child, and sentencing defendant to an indeterminate sentence with a maximum of seven years on the sodomy conviction, and concurrent sentences of a maximum of three years on the sexual abuse count, and one year each on the sexual misconduct and endangering the welfare of a child counts, unanimously modified, on the law, to the extent of reversing the convictions for sexual abuse and sexual misconduct, vacating the concurrent sentences imposed thereon, and dismissing those counts of the indictment; and as so modified, the judgment is otherwise affirmed. Sexual abuse and sexual misconduct are “ inclusory concurrent counts ” with sodomy in the first degree. (CPL 300.30, subd. 4.) As such, a finding of guilt upon the greatest count mandates a dismissal of the lesser counts (CPL 300.40, subd. 3, par. [b]). (See People v. Pyles, 44 A D 2d 784; People v. Bidout, 46 A D 2d 643; People V. Droz, 46 A D 2d 751.) We find no merit in the other points raised by defendant. Concur — Markewieh, J. P., Lupiano, Tilzer and Lane, J J.