People v. Matos

50 A.D.2d 872, 376 N.Y.S.2d 631, 1975 N.Y. App. Div. LEXIS 11756

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1975
• Status: Published

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 20, 1974, convicting him of robbery in the first degree, grand larceny in the third degree (five counts) and criminal possession of a dangerous drug in the sixth degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of grand larceny in the third degree and the sentences thereon, and said counts are dismissed. As so modified, judgment affirmed. Under the facts of this case, defendant could not have committed robbery in the first degree without at the same time having committed grand larceny •in the third degree. Therefore, the verdict of guilty as to the robbery count requires that the lesser included counts be dismissed (People v Grier, 37 NY2d 847). This case is not, contrary to defendant’s assertion, analogous to People v Belvin (47 AD2d 929), for there the jury, on its own, acquitted the defendant of the lesser charge and found him guilty of the greater. Here, without a defense objection, the jury was told to "acquit” defendant of robbery in the second and third degrees if it found him guilty of robbery in the first degree. It did just that. It is obvious from the entire charge that the trial court used the word "acquit” to mean that it was not necessary for the jury to consider the lesser charges if it found defendant guilty of the greater charge. We have reviewed defendant’s remaining arguments and find them to be without merit. Martuscello, Acting P. J., Cohalan, Brennan, Munder and Shapiro, JJ., concur.