People v. Giampetruzzi

60 A.D.2d 541, 400 N.Y.S.2d 58, 1977 N.Y. App. Div. LEXIS 14458

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1977
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County, rendered July 31, 1974, unanimously affirmed. Judgment, Supreme Court, New York County, rendered March 12, 1974, convicting defendant, after a jury trial, of the crimes of robbery, first degree, kidnapping, second degree, grand larceny, second degree, and possession of a weapon as a misdemeanor, and upon his plea of guilty, of the crimes of robbery in the third degree, escape in the first degree and possession of a weapon as a felony, unanimously modified, on the law, to reverse the convictions for kidnapping, grand larceny and possession of a weapon as a misdemeanor, to vacate the sentences thereon and to dismiss those counts, and otherwise affirmed. On the facts of this case the kidnapping merged in the robbery. (See People v Cassidy, 40 NY2d 763; People v Robinson, 59 AD2d 881.) Furthermore, as the People concede, defendant could not have committed the robbery, first degree, without also committing grand larceny, second degree, and possessing the weapon. Accordingly, the latter two counts should be dismissed as inclusory concurrent counts. (People v Rodriguez, 59 AD2d 781; People v Pyles, 44 AD2d 784.) We have examined the other points raised by appellant and find them without merit. Concur—Lupiano, J. P., Birns, Silverman and Evans, JJ.