People v. Henryhand

55 A.D.2d 1046, 392 N.Y.S.2d 96, 1977 N.Y. App. Div. LEXIS 10403

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1977
• Status: Published

Opinion

Judgment unanimously modified, on the law, in accordance with memorandum, and, as modified, affirmed. Memorandum: In view of defendant’s conviction of robbery in the first degree, we reverse his conviction of robbery in the second degree and dismiss that count of the indictment on the ground that it constitutes a lesser included offense (CPL 300.40, subd 3, par [b]; 1.20, subd 37). Each robbery count in the indictment was predicated upon a theory of defendant’s criminal liability for the conduct of another (Penal Law, § 20.00), and on the facts of this case it would have been impossible for defendant to commit robbery in the first degree without concomitantly committing, by the same conduct, robbery in the second degree (see People v Grier, 37 NY2d 847; see, also, People v Williams, 50 AD2d 911). We have considered defendant’s other contentions and find them to be without merit. (Appeal from judgment of Monroe Supreme Court—robbery first degree, etc.) Present—Cardamone, J. P., Simons, Dillon, Goldman and Witmer, JJ.