People v. Scott

53 A.D.2d 703, 384 N.Y.S.2d 878, 1976 N.Y. App. Div. LEXIS 13468

Opinion

Appeal by defendant from a judgment of the County Court, Westchester County, rendered December 27, 1973, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the second degree and possession of a weapon, etc., as a misdemeanor, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of robbery in the second degree and grand larceny in the second degree and, as a matter of discretion in the interest of justice, by reversing the conviction of possession of a weapon, etc., as a misdemeanor, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. Conviction on the charge of robbery in the first degree requires a dismissal of the inclusory concurrent counts of robbery in the second degree and grand larceny in the second degree (see CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847). The presumption contained in subdivision 3 of section 265.15 of the Penal Law was improperly charged in light of the fact that the undisputed evidence established that the weapon in question was observed in the actual possession of a person other than the defendant just prior to the apprehension of the defendant (Penal Law, 265.15, subd 3, par [a]; People v Garcia, 41 AD2d 560, 561; People v Davis, 52 Misc 2d 184, 185, 186; People v Logan, 94 NYS2d 681, 683-684, mod 276 App Div 1029). Hopkins, Acting P. J., Martuscello, Rabin, Shapiro and Titone, JJ., concur.