People v. Rivera

138 A.D.2d 255, 525 N.Y.S.2d 606, 1988 N.Y. App. Div. LEXIS 2181

Opinion

Judgment, Supreme Court, Bronx County (Ivan Warner, J.), rendered May 10, 1983, convicting defendant after a jury trial of attempted murder in the second degree, robbery in the first degree (two counts), burglary in the first degree, robbery in the second degree (two counts), assault in the first degree (two counts), and sentencing him as a second violent felony offender to indeterminate terms of imprisonment of from 12 Vz to 25 years for attempted murder, of from 10 to 20 years for each of the two convictions for robbery in the first degree, of from IVz to 15 years for each of the two convictions for robbery in the second degree, of from IVz to 15 years for conviction for burglary in the first degree, of from IVz to 15 years for each of the two convictions for assault in the first degree, all sentences to run concurrently with each other but consecutive to defendant’s unexpired parole time on an unrelated violent felony conviction, unanimously modified, on the law, to vacate defendant’s conviction for robbery in the second degree (count five of the indictment), to dismiss that count, and otherwise affirmed.

As already concluded by this court on the appeal of a codefendant, the defendant’s conviction of robbery in the second degree on count five of the indictment was a lesser included offense of robbery in the first degree (count two of the indictment), and accordingly that conviction must be vacated and the count dismissed. (See, People v Rivera, 123 AD2d 295, 296; see also, CPL 300.40 [3] [b].) Concur—Murphy, P. J., Sandler, Carro, Rosenberger and Smith, JJ.