People v. Smith

51 A.D.2d 782, 379 N.Y.S.2d 497, 1976 N.Y. App. Div. LEXIS 11346

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1976
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 5, 1974, convicting him of robbery in the first degree (three counts), robbery in the second degree (three counts), grand larceny in the third degree (two counts) and possession of a weapon, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of robbery in the second degree (three counts) and grand larceny in the third degree (two counts) and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The positive identification of defendant as the second participant in the robbery by at least two people who had extended opportunity to observe him amply supports the jury’s verdict of guilt. Under the facts of this case the counts of robbery in the second degree and grand larceny in the third degree were inclusory concurrent counts within the meaning of CPL 300.40 (subd 3, par [b]), which provides that a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser included count submitted (see People v Grier, 37 NY2d 847). Rabin, Acting P. J., Hopkins, Latham, Margett and Christ, JJ., concur.