People v. Shuler

50 A.D.2d 908, 377 N.Y.S.2d 565, 1975 N.Y. App. Div. LEXIS 11822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1975
• Status: Published

Opinion

— Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 25, 1974, convicting him, inter alia, of robbery in the first degree, assault in the second degree and possession of a weapon, dangerous instrument and appliance (two counts), after a nonjury trial, and imposing sentence. Judgment modified, on the law, by deleting therefrom the conviction and sentence for possession of a weapon, dangerous instrument and appliance under the sixth count of the indictment, and by dismissing said count. As so modified, judgment affirmed. Under the facts of this case, the charge of possession of a weapon under the sixth count of the indictment (a tree branch) is inclusory in the conviction of assault in the second degree (CPL 1.20, subd 37). Where a verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greatest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [6]). Accordingly, the conviction of possession of a weapon under the sixth count must be dismissed (People v Grier, 37 NY2d 847; People v Pyles, 44 AD2d 784), and the judgment in all other respects should be affirmed. Martuscello, Acting P. J., Latham, Margett, Brennan and Shapiro, JJ., concur.