People v. Stokes

118 A.D.2d 428, 499 N.Y.S.2d 91, 1986 N.Y. App. Div. LEXIS 54314

Opinion

Judgment, Supreme Court, New York County (Michael J. Dontzin, J.), rendered June 13, 1983, which convicted defendant, after a jury trial, of the crimes of robbery in the second degree and of robbery in the third degree, and sentenced him, as a second violent felony offender, to an indeterminate term of imprisonment of from 7 Vi to 15 years on the second degree robbery count and to an indeterminate term of imprisonment of from 3 Vi to 7 years on the third degree robbery count, with both sentences to run concurrently, is unanimously modified, on the law, to the extent of vacating defendant’s conviction and sentence on the third degree robbery count, and otherwise affirmed.

In substance, the indictment charged that defendant, on the afternoon of January 7, 1983, in Central Park, robbed the female victim of her purse by smashing her face against a cement wall and jabbing her in the face with a screwdriver. Thereafter, defendant was convicted of robbery in the second degree for forcibly stealing property and causing physical injury to the victim (Penal Law § 160.10 [2] [a]), and of robbery in the third degree for forcibly stealing the victim’s property (Penal Law § 160.05). Based upon these facts, we find, and the People concede, that defendant could not have committed the second degree crime without also having committed the third degree crime, the counts being inclusory and concurrent (CPL 300.30 [4]; People v Hayes, 43 AD2d 99, affd 35 NY2d 907). The Court of Appeals in People v Grier (37 NY2d 847, 848) held that: "[w]here the 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 [b]).”

Accordingly, we modify the judgment by vacating the defendant’s conviction and sentence for the crime of robbery in the third degree.

We have examined the other points raised by the defendant and find them to be without merit. Concur — Kupferman, J. P., Ross, Carro, Fein and Milonas, JJ.