People v. Shabazz

49 A.D.2d 516, 370 N.Y.S.2d 86, 1975 N.Y. App. Div. LEXIS 10356

Opinion

Judgment, Supreme Court, New York County, rendered on March 16, 1973, convicting defendant, after trial before Leff, J., and a jury, of two counts of robbery in the second degree, assault in the second degree and assault in the third degree, unanimously modified, on the law, to the extent of reversing the conviction for assault in the second degree and dismissing that count of the indictment, and, as so modified, the judgment is affirmed. The People concede that assault in the second degree as charged in the indictment is an inclusory concurrent count (CPL 300.30) of robbery in the second degree, as charged therein. Dismissal must follow irrespective of defendant’s failure to request that the court submit the counts in the alternative. The verdict of guilty to robbery requires a dismissal of the lesser assault count. (People v Pyles, 44 AD2d 784.) We have examined defendant’s contention that his sentence was excessive and find it to be without merit. Concur—Stevens, P. J., kupferman, Murphy, Tilzer and Capozzoli, JJ.