People v. Smith

53 A.D.2d 704, 384 N.Y.S.2d 877, 1976 N.Y. App. Div. LEXIS 13469

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 15, 1973, upon resentence (this court treats the notice of appeal, which is from the original judgment, as a premature notice of appeal from the judgment of resentence [see CPL 460.10, subd 6]), convicting him of robbery in the first degree (two counts), robbery in the second degree, grand larceny in the third degree and assault in the first degree (two counts), upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions for grand larceny in the third degree and assault in the first degree (under the fourth and fifth counts of the indictment), and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The findings of fact are affirmed. Under the facts of this case, defendant could not have committed robbery in the first degree (under the second count of the indictment) without also having committed grand larceny in the third degree and assault in the first degree (as charged in the fourth and fifth counts of the indictment). Therefore, the guilty verdict on the said robbery count requires dismissal of the said grand larceny and assault counts (see CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847). We have examined the other arguments raised by defendant and find them to be without merit. Latham, Acting P. J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.