People v. Gutierrez

60 A.D.2d 529, 400 N.Y.S.2d 5, 1977 N.Y. App. Div. LEXIS 14432

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1977
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered December 21, 1973, convicting defendant after jury trial of robbery in the first degree, robbery in the second degree, grand larceny in the third degree and possession of a weapon, dangerous instrument and appliance, unanimously modified, on the law, to reverse the convictions on the counts of robbery in the second degree, grand larceny in the third degree and possession of the weapon, to vacate the sentences thereon and to dismiss those counts', and otherwise the judgment is. affirmed. On the facts of this case, the defendant could not have committed the robbery, first degree, without committing the other crimes of which he was also convicted. Therefore, the counts of robbery, second degree, grand larceny, third degree, and possession of a weapon are inclusory concurrent counts of robbery in the first degree, mandating dismissal of these counts. (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848; People v Diaz, 56 AD2d 557.) We have examined the other points raised by appellant and find them without merit. Concur—Lupiano, J. P., Silverman, Evans and Markewich, JJ.