People v. Newland

109 A.D.2d 661, 486 N.Y.S.2d 250, 1985 N.Y. App. Div. LEXIS 47142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 19, 1985
• Status: Published

Opinion

— Judgment of the Supreme Court, New York County (Thomas Dickens, J., at trial; Clifford Scott, J., at sentence), rendered on February 2,1983, convicting defendant, following a jury trial, of two counts of robbery in the second degree and one count of assault in the second degree and sentencing him to concurrent indeterminate terms of imprisonment of from 3 to 6 years, is modified, on the law, to the extent of reversing defendant’s conviction on the assault charge and dismissing as to that count only, and otherwise affirmed.

Pursuant to CPL 300.50, assault in the second degree is a lesser included offense of robbery in the second degree which, by definition, is committed when an individual forcibly steals property and causes physical injury to a person who is not a participant in the crime (Penal Law § 160.10 [2] [a]). Since defendant’s conviction for robbery in the second degree necessarily encompasses the crime of assault in the second degree (People v Boyd, 102 AD2d 774), his conviction for second degree assault should be reversed and that count dismissed. Concur — Sandler, J. P., Sullivan, Milonas and Kassal, JJ.