People v. VanDuyne

Appellate Division of the Supreme Court of New York

People v. VanDuyne

267 A.D.2d 408, 701 N.Y.S.2d 99, 1999 N.Y. App. Div. LEXIS 13241

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 20, 1999

StatusPublished

Cited by3 cases

This text of 267 A.D.2d 408 (People v. VanDuyne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. VanDuyne, 267 A.D.2d 408, 701 N.Y.S.2d 99, 1999 N.Y. App. Div. LEXIS 13241 (N.Y. Ct. App. 1999).

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Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Paño Z. Patsalos, J.), rendered November 9, 1995, convicting him of robbery in the second degree, assault in the second degree, grand larceny in the fourth degree, and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement officials.

Ordered that the judgment is modified, on the law, by vacating the defendant’s conviction of assault in the second degree, [409]*409vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Contrary to the defendant’s contention, his statements were made after he voluntarily, knowingly, and intelligently waived his Miranda rights (see, Miranda v Arizona, 384 US 436; People v Rose, 223 AD2d 607).

As the People correctly concede, the defendant’s conviction of assault in the second degree (see, Penal Law § 120.05 [6]) must be vacated since that offense is an inclusory concurrent count of the crime of robbery in the second degree (see, People v Ross, 246 AD2d 561; People v Male, 227 AD2d 502; People v Tucker, 221 AD2d 670). However, contrary to the defendant’s contention, the crime of grand larceny in the fourth degree, based upon the theory that property was taken from the person of the victim, is not a lesser-included offense of robbery in the second degree (see, Penal Law § 160.10 [2]; People v Ross, supra, at 562; People v Tucker, supra; Matter of Albert R., 215 AD2d 563, 564). Further, the charge of assault in the third degree is not a lesser-included offense of the offense of robbery in the second degree (see, People v Ross, supra; People v Tucker, supra).

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Ritter, J. P., Sullivan, Goldstein and H. Miller, JJ., concur.

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—Appeal by the defendant from a judgment of the County Court, Orange County (Paño Z. Patsalos, J.), rendered November 9, 1995, convicting him of robbery in the second degree, assault in the second degree, grand larceny in the fourth degree, and assault in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review that branch of the defendant’s omnibus motion which was to suppress statements made by him to law enforcement officials.

Ordered that the judgment is modified, on the law, by vacating the defendant’s conviction of assault in the second degree, [409]*409vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Contrary to the defendant’s contention, his statements were made after he voluntarily, knowingly, and intelligently waived his Miranda rights (see, Miranda v Arizona, 384 US 436; People v Rose, 223 AD2d 607).

As the People correctly concede, the defendant’s conviction of assault in the second degree (see, Penal Law § 120.05 [6]) must be vacated since that offense is an inclusory concurrent count of the crime of robbery in the second degree (see, People v Ross, 246 AD2d 561; People v Male, 227 AD2d 502; People v Tucker, 221 AD2d 670). However, contrary to the defendant’s contention, the crime of grand larceny in the fourth degree, based upon the theory that property was taken from the person of the victim, is not a lesser-included offense of robbery in the second degree (see, Penal Law § 160.10 [2]; People v Ross, supra, at 562; People v Tucker, supra; Matter of Albert R., 215 AD2d 563, 564). Further, the charge of assault in the third degree is not a lesser-included offense of the offense of robbery in the second degree (see, People v Ross, supra; People v Tucker, supra).

The defendant’s remaining contentions are either unpreserved for appellate review (see, CPL 470.05 [2]) or without merit. Ritter, J. P., Sullivan, Goldstein and H. Miller, JJ., concur.

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267 A.D.2d 408, 701 N.Y.S.2d 99, 1999 N.Y. App. Div. LEXIS 13241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vanduyne-nyappdiv-1999.

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