People v. Mercado

120 A.D.2d 619, 501 N.Y.S.2d 1019, 1986 N.Y. App. Div. LEXIS 56711

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered November 4, 1982, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, and criminal use of a firearm in the first degree, after a nonjury trial, and imposing sentence.

Judgment modified, on the law, by reducing the conviction of robbery in the first degree to one of robbery in the third degree, by vacating the convictions of criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree and dismissing those counts of the indictment, and by vacating the sentence imposed. As so modified, judgment affirmed, and case remitted to Criminal Term for resentencing in accordance herewith.

This court has previously considered the issues now raised by the defendant on the appeal of his codefendant with whom he was jointly tried (see, People v Amato, 99 AD2d 495). Under these circumstances, our decision therein, finding that there was no proof that the codefendant used a loaded and operable firearm, that his convictions for criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree should be vacated and those counts of the indictment dismissed, and that the charge of robbery in the first degree should be reduced to robbery in the third degree People v Amato, supra, at p 496), is controlling. Eiber, J. P., Kunzeman, Kooper and Spatt, JJ., concur.