People v. Peguese

63 A.D.2d 608, 405 N.Y.S.2d 77, 1978 N.Y. App. Div. LEXIS 11451

Opinion

Judgment of conviction of attempted robbery, Supreme Court, New York County, rendered March 14, 1972, unanimously modified, on the law, to reverse and, as a matter of discretion in the interest of justice, to dismiss the count of unlawful possession of a weapon, and otherwise affirmed. We are adverted by defendant-appellant to no point of any consequence whatever requiring that we disturb the conviction. However, defendant having theretofore been convicted of a crime, was charged with the weapon count as a felony and the required information filed (CPL 200.60, subd 2). By inadvertence, defendant was never arraigned thereon (subd 3), and, in ordinary circumstances, in lieu of remand for a new trial, the sentence having been subsumed by a direction that it be served concurrently with that imposed on the more serious conviction, the weapon conviction would have been reduced to misdemeanor status. Defendant is now on parole, and such reduction, of no benefit to his parole status, would constitute a useless gesture. Therefore, we exercise discretion to dismiss that count. Concur—Lupiano, J. P., Fein, Markewich and Sullivan, JJ.