People v. Smith

59 A.D.2d 789, 398 N.Y.S.2d 749, 1977 N.Y. App. Div. LEXIS 13855

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 5, 1975, convicting him of attempted robbery in the first degree, attempted grand larceny in the second degree, possession of weapons, etc., as a felony, and menacing, 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. Although the issue is not raised by appellant, we note that the crime of possession of weapons, etc., as a felony, is a lesser included offense of attempted robbery in the first degree and the conviction thereof should have been dismissed upon appellant’s conviction of the robbery charge (see CPL 300.40, subd 3, par [b]; People v Parks, 59 AD2d 543). We have examined the contentions raised by appellant and find them to be without merit. Gulotta, P. J., Latham, Damiani and O’Connor, JJ., concur.