People v. Fondal

64 A.D.2d 638, 406 N.Y.S.2d 867, 1978 N.Y. App. Div. LEXIS 12430

Opinion

Appeal by defendant from two judgments of the Supreme Court, Queens County, both rendered June 6, 1974, one convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence (Indictment No. 3014/73) and the other convicting him of attempted robbery in the third degree, upon his plea of guilty, and imposing sentence (Indictment No. 1621/73). Judgment as to Indictment No. 1621/73 affirmed. No opinion. Judgment as to Indictment No. 3014/73 reversed, on the law, and, as a matter of discretion in the interest of justice, indictment dismissed. In our opinion the trial court erred when it refused to charge criminal possession of stolen property in the third degree as a lesser included offense of robbery in the third degree (see People v Hayes, 43 AD2d 99, affd 35 NY2d 907; People v Henderson, 41 NY2d 233). The appellant has long since served his sentence and any possible period of parole. Accordingly, under the circumstances of this case, a dismissal of the indictment, rather than a new trial, is appropriate (see People v Barnes, 58 AD2d 608; cf. People v Allen, 39 NY2d 916). Mollen, P. J., Hopkins, Suozzi, Shapiro and O’Connor, JJ., concur.