People v. Leary

146 A.D.2d 551, 538 N.Y.S.2d 444, 1989 N.Y. App. Div. LEXIS 489

Opinion

— Judgment, Supreme Court, New York County (Eugene Nardelli, J.), rendered November 20, 1985, convicting defendant, after a jury trial, of three counts of robbery in the first degree (Penal Law § 160.15), one count each of robbery in the second degree (Penal Law § 160.10) and criminal possession of a weapon in the second degree (Penal Law § 265.03), and two counts of assault in the first degree (Penal Law § 120.10), and sentencing him, as a predicate felony offender, to 10 to 20 years for each of the first degree robbery convictions, and IV2 to 15 years for the remaining convictions, all sentences to run concurrently, unanimously modified, on the law, to the extent of vacating the conviction and sentence for assault in the first degree under the eighth count of the indictment and dismissing said count, and otherwise affirmed.

Under the facts presented at trial, defendant could not have committed the crime of first degree robbery pursuant to subdivision (1) of section 160.15 of the Penal Law, as charged in count one of the indictment, without concomitantly satisfying the elements of first degree assault pursuant to subdivision (4) of section 120.10 of the Penal Law, as charged in count eight. Thus, it is conceded by the District Attorney, and we agree, that the assault is a lesser included offense of the robbery (CPL 1.20 [37]; People v Moyer, 27 NY2d 252), and that the assault conviction must therefore be vacated. (People v Chapman, 60 AD2d 584, 585.)

We have examined defendant’s remaining arguments on appeal and find them to be without merit. Concur — Ross, J. P., Asch, Kassal and Wallach, JJ.