People v. Rios

89 A.D.2d 943, 454 N.Y.S.2d 301, 1982 N.Y. App. Div. LEXIS 18171

Opinion

Judgment, Supreme Court, New York County (Leff, J.), rendered on August 24, 1979, unanimously modified, on the law, to remand that portion of the verdict of the jury finding defendant-appellant guilty of sodomy, first degree, to the Supreme Court, New York County, for sentence on that count, and otherwise affirmed. After sentencing defendant on the felony murder count, the court, stating that the predicate sodomy count was a lesser included count of felony murder, ruled that no sentence would be imposed on that count. It is not a lesser included count and we remand for sentence (see People v Santana, 82 AD2d 784, affd 55 NY2d 673; People v Gonzalez, 87 AD2d 783). Concur ■— Murphy, P. J., Sullivan, Carro, Lupiano and Silverman, JJ.