People v. Wallace

53 A.D.2d 1057, 385 N.Y.S.2d 885, 1976 N.Y. App. Div. LEXIS 15872

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1976
• Status: Published

Opinion

Judgment unanimously modified, on the law, in accordance with memorandum and as modified affirmed. Memorandum: Judgment was entered upon a jury verdict convicting each defendant of robbery in the first degree, robbery in the second degree, burglary in the first degree, and grand larceny in the third degree. Additionally, defendant Gatson was convicted of two counts of murder. The robbery in the second degree and grand larceny in the third degree counts are, on the facts of this case, inclusory concurrent counts of robbery in the first degree (CPL 300.30, subd 4; People v Anderson, 51 AD2d 858; People v Cabrera, 49 AD2d 856; People v Hayes, 43 AD2d 99, affd 35 NY2d 907). Thus, the convictions upon the first degree robbery count are deemed dismissals of both lesser counts (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847). Defendants’ convictions of robbery in the second degree and grand larceny in the third degree are reversed, those counts are dismissed and, otherwise, the judgments are affirmed. (Appeal from judgment of Monroe County Court, convicting defendant of robbery, first degree and other charges.) Present— Cardamone, J. P., Mahoney, Dillon, Goldman and Witmer, JJ.