People v. Wiley

101 A.D.2d 818, 475 N.Y.S.2d 351, 1984 N.Y. App. Div. LEXIS 18479

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 7, 1984
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Donnelly, J.), rendered October 22, 1981, convicting him of robbery in the first degree (two counts), robbery in the second degree, assault in the second degree (two counts), grand larceny in the third degree, criminal use of a firearm in the first degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence, f Judgment modified, on the law, by reversing the conviction of assault in the second degree as charged in the fifth count of the indictment and vacating the sentence imposed thereon, and that count of the indictment dismissed. As so modified, judgment affirmed, f The fifth count of the indictment charging defendant with assault in the second degree pursuant to subdivision 6 of section 120.05 of the Penal Law was an inclusory concurrent count of robbery in the second degree, as charged in the third count of the indictment pursuant to section 160.10 (subd 2, par [a]) of the Penal Law. Therefore, a guilty verdict of the greater offense requires dismissal of the lesser offense (see GPL 300.40, subd 3, par [b]). We have reviewed defendant’s remaining contentions and find they do not warrant reversal. Mangano, J. P., Thompson, O’Connor and Boyers, JJ., concur.