People v. Hankins

48 A.D.2d 649, 368 N.Y.S.2d 223, 1975 N.Y. App. Div. LEXIS 9649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1975
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered April 10, 1972, convicting defendant after a jury trial of the crimes robbery in the second degree, grand larceny in the third degree, and assault in the second degree, unanimously modified, on the law, to the extent of reversing the convictions of the counts of grand larceny in the third degree and assault in the second degree, and dismissing those counts of the indictment. The judgment, as so modified, is affirmed. The underlying facts upon which the conviction of robbery in the second degree was predicated included the causing of physical injury to the complaining witness (Penal Law, § 160.10, subd 2, par [a]). We therefore find that the count of assault in the second degree as well as grand larceny in the third degree are lesser inclusory concurrent counts of the crime of robbery in the second degree. A determination of guilt of the robbery count is deemed a dismissal of every lesser-included count submitted (CPL 300.40, subd 3, par [b]; People v Pyles, 44 AD2d 784), and we have accordingly directed dismissal of those counts. We have reviewed, the other contentions urged by appellant and find them to be without merit. Order, Supreme Court, New York County, entered March 14, 1973, denying a motion to vacate the judgment based on newly discovered evidence, unanimously affirmed. Concur—Kupferman, J. P., Lupiano, Tilzer, Lane and Nunez, JJ.