People v. Henry

64 A.D.2d 639, 406 N.Y.S.2d 543, 1978 N.Y. App. Div. LEXIS 12435

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1978
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 11, 1977, convicting him of robbery in the second degree (two counts), assault in the second degree, assault in the third degree, and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of assault in the second degree and grand larceny in the third degree and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. No issues have been raised with respect to the findings of fact. The People concede on this appeal, and we agree, that in the circumstances of this case the crime of assault in the second degree is an inclusory concurrent count of robbery in the second degree (under count two of the indictment) and the crime of grand larceny in the third degree is an inclusory concurrent count of robbery in the second degree as charged in both counts one and two. Thus the convictions for these inclusory concurrent counts must be reversed and said counts must be dismissed. Since the conviction for assault in the third degree, which defendant would have us reverse and dismiss as an inclusory concurrent count of robbery in the second degree (under count two), requires proof of intent to cause physical injury and the robbery count does not, that conviction must stand (see People v Chapman, 60 AD2d 584, 585). Latham, J. P., Damiani, Margett and Hawkins, JJ., concur.