People v. James

70 A.D.2d 939, 417 N.Y.S.2d 517, 1979 N.Y. App. Div. LEXIS 12551

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 24, 1977, convicting him of robbery in the second degree (two counts) and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the second degree and the sentence imposed thereon, and said count is dismissed. As so modified, judgment affirmed. As the District Attorney concedes in his brief, assault in the second degree is, on the facts presented in the instant record, a lesser inclusory count of robbery in the second degree. Accordingly, the assault conviction must be reversed and said count must be dismissed. We find no merit to defendant’s contention concerning the identification testimony. The People demonstrated, by clear and convincing evidence, that the courtroom identification by the complaining witness was based upon her observations of the defendant independent of the unlawful showup (see People v Ballott, 20 NY2d 600). Lazer, J. P., Rabin, Gulotta and Shapiro, JJ., concur.