People v. Williams

234 A.D.2d 324, 651 N.Y.S.2d 535, 1996 N.Y. App. Div. LEXIS 12746

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Katz, J.), rendered October 20, 1993, convicting him of attempted robbery in the second degree (two counts) and attempted robbery in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of attempted robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The People correctly concede that the defendant’s conviction on the higher count of attempted robbery in the second degree requires that his conviction on the lesser count of attempted robbery in the third degree be dismissed as an inclusory count (see, CPL 300.40 [3] [b]; People v Harris, 212 AD2d 545, 546; People v Windbush, 163 AD2d 591, 593) and that this issue need not be preserved to obtain appropriate relief on the law (see, People v Butler, 192 AD2d 543, 545). Accordingly, the judgment of conviction must be modified, on the law, and that count of the indictment dismissed.

We reject the defendant’s argument that reversal is warranted because he was not present at the voir dire sidebar conference (see, People v Vargas, 88 NY2d 363, 378).

We have considered the defendant’s remaining contention and find it to be without merit. Rosenblatt, J. P., O’Brien, Ritter and Friedmann, JJ., concur.