People v. Preston

88 A.D.2d 574, 451 N.Y.S.2d 396, 1982 N.Y. App. Div. LEXIS 16731

Opinion

— Judgment, Supreme Court, Bronx County (McMahon, J.), rendered September 12,1980, convicting defendant-appellant, after a jury verdict, of one count of robbery in the first degree and two counts of assault in the first degree and sentencing him as a predicate felon to concurrent terms with a maximum of TVz to 15 years, unanimously modified, on the law, to the extent of reversing the judgment convicting defendant-appellant of the fifth count of the indictment as an inclusory concurrent count, dismissing said count and vacate ing the sentence for said count, and otherwise affirmed. Appellant was convicted of robbery in the first degree under the first count of the indictment, in that during the course of the commission of the crime he caused serious physical injury to the complainant. He was also convicted under the fifth count of the indictment, in that during the course of the commission of the same crime he caused serious physical injury to the same complainant. These were inclusory concurrent counts, and a verdict of guilty upon the higher count submitted is deemed a dismissal of the lesser count submitted (CPLR 300.40, subd 3, par [b]). Concur — Sandler, J. P., Carro, Lupiano, Bloom and Milonas, JJ.