People v. Patterson

61 A.D.2d 816, 402 N.Y.S.2d 50, 1978 N.Y. App. Div. LEXIS 10268

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County, rendered November 21, 1975, convicting him of robbery in the first degree, assault in the second degree (two counts) and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of criminal possession of a weapon in the third degree and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The count charging criminal possession of a weapon in the third degree, committed by possession of a dangerous instrument, was an inclusory concurrent count of robbery in the first degree, committed by using and threatening the use of the same dangerous instrument (see People v Strawder, 54 AD2d 743) and of assault in the second degree, in which the injuries were inflicted by means of the same dangerous instrument (see Penal Law, § 120.05, subd 2). Since defendant could not have committed robbery in the first degree and assault in the second degree without concomitantly having committed criminal possession of a weapon, it was improper to convict him of all three offenses. Accordingly, the conviction of criminal possession of a weapon must be reversed and the said count dismissed (see People v Grier, 37 NY2d 847). Hopkins, J. P., Martuscello, Latham and O’Connor, JJ., concur.