Opinion
May 22, 1978
Appeal by defendant from a judgment of the County Court, Nassau County, rendered November 16, 1973, convicting him of two counts of murder (felony murder and intentional murder), robbery in the first degree, petit larceny and possession of weapons, etc., as a misdemeanor, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of robbery in the first degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. It is our opinion that the count of robbery in the first degree, the underlying felony of the felony murder charge, is an inclusory concurrent count thereof. Therefore, the conviction for felony murder mandates the reversal and dismissal of the robbery count (see CPL 300.40, subd 3, par [b]; People v Johnson, 39 N.Y.2d 364, 370; People v Pyles, 44 A.D.2d 784). Latham, J.P., Damiani, Hawkins and O'Connor, JJ., concur.