People v. Richmond

288 A.D.2d 241, 732 N.Y.S.2d 582, 2001 N.Y. App. Div. LEXIS 10468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2001
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (McCann, J.), rendered June 23, 1998, convicting him of robbery in the first degree and robbery in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’s contention that he was unduly prejudiced by cross-examination testimony that he participated in a treatment program for alcohol and drug abuse is without merit. That information was already before the jury as a result of the testimony elicited by the defense counsel during the direct ex-animation of the same witness. The defendant “opened the door with respect to the complained-of line of questioning” (People v Laguerre, 184 AD2d 783).

As the People correctly concede, the defendant’s conviction of robbery in the third degree was a lesser-included offense of his conviction of robbery in the first degree. Accordingly, the conviction of robbery in the third degree and the sentence imposed thereon must be vacated and that count of the indictment dismissed (see, People v Gethers, 212 AD2d 544).

The defendant’s remaining contentions are without merit. Santucci, J. P., Altman, Townes and Crane, JJ., concur.