People v. Rivera

46 A.D.2d 642, 360 N.Y.S.2d 431, 1974 N.Y. App. Div. LEXIS 3755

Opinion

Judgment rendered in the Supreme Court, Bronx County, on July 27, 1973 convicting defendant after trial of attempted robbery in the first degree, attempted grand larceny in the third degree and possession of a weapon as a felony, and sentencing him to concurrent indeterminate terms of imprisonment of 10 years on the robbery charge, three years on the weapons charge and a conditional discharge on the attempted grand larceny charge, unanimously modified, on the law, to the extent of reversing the convictions on the weapon and the attempted grand larceny counts and dismissing those counts of the indictment and, as so modified, the judgment is affirmed. The District Attorney concedes that the verdict of guilty on the attempt to commit the crime of robbery in the first degree count, upon the facts in this case, necessarily required dismissal of the lesser included concurrent counts of possession of a weapon and larceny. The counts of robbery, possession of a weapon and attempted grand larceny on this record should have been submitted in the alternative. A verdict of guilty on the attempted robbery count entitled the defendant to a dismissal of the lesser counts submitted as inclusory concurrent counts. (See CPL 300.40, subd. 3, par [b]; People v. Pyles, 44 A D 2d 784; and People v. Marflsi, 42 A D 2d 948.) We have examined the other points raised by appellant and find them without merit. The credibility of the witnesses was for the jury. We are bound by the verdict which was not against the weight of the evidence. (See People v. Regina, 19 N Y 2d 65 and People v. White, 2 ,N Y 2d 220.) Concur — McGivem, P. J., Markewich, Nunez, Lupiano and Yesawieh, JJ.