People v. Hamilton

70 A.D.2d 770, 417 N.Y.S.2d 356, 1979 N.Y. App. Div. LEXIS 12265

Opinion

— Judgment unanimously modified, on the law and facts, and, as modified, affirmed, in accordance with the following memorandum: From the evidence received at defendant’s trial, it was impossible for him to have committed the greater offense of robbery in the first degree in violation of subdivision 4 of section 160.15 of the Penal Law without concomitantly by the same conduct committing the lesser offenses of robbery in the second degree, grand larceny in the third degree and petit larceny. (See People v Hayes, 43 AD2d 99.) Therefore the judgment convicting defendant of robbery in the second degree, grand larceny in the third degree and petit larceny is reversed and those counts of the indictment are dismissed. (Appeal from judgment of Niagara County Court — robbery, first degree; robbery, second degree, and other offenses.) Present — Dillon, P. J., Cardamone, Schnepp, Doerr and Moule, JJ.