People v. Smith

59 A.D.2d 547, 397 N.Y.S.2d 131, 1977 N.Y. App. Div. LEXIS 13335

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 14, 1975, convicting him of robbery in the first degree, possession of weapons, etc., as a felony, manufacture, transport, disposition and defacement of weapons, etc., as a felony, and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of possession of weapons, etc., as a felony, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The proof was sufficient to establish defendant’s guilt of all of the crimes charged beyond a reasonable doubt. However, under the facts of this case, defendant could not have committed the crime of robbery in the first degree without also having possessed a weapon. Therefore, the verdict of guilty on the robbery count requires dismissal of the weapon possession count (see Penal Law, § 160.15, subd 2; cf. People v Grier, 37 NY2d 847). We have considered defendant’s other arguments and find them to be without merit. Martuscello, J. P., Hargett, Suozzi and O’Connor, JJ., concur.