Opinion
KA 01-01836.
Decided April 30, 2004.
Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered April 26, 2001. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, robbery in the second degree, and robbery in the third degree.
ROBERT J. BOYLE, NEW YORK, FOR DEFENDANT-APPELLANT.
MICHAEL A. ARCURI, DISTRICT ATTORNEY, UTICA (CARL J. BOYKIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: GREEN, J.P., PINE, SCUDDER, KEHOE, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing that part convicting defendant of robbery in the third degree, vacating the sentence imposed thereon and dismissing count four of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him of burglary in the second degree (Penal Law § 140.25), robbery in the second degree (§ 160.10 [1]), and robbery in the third degree (§ 160.05). Defendant's contention that the evidence is legally insufficient to support the conviction is unpreserved for our review ( see People v. Hines, 97 N.Y.2d 56, 61, rearg denied 97 N.Y.2d 678). We reject defendant's further contention that the judgment of conviction should be reversed based on prosecutorial misconduct ( cf. People v. Mott, 94 A.D.2d 415). However, we agree with defendant, and the People concede, that count four of the indictment charging robbery in the third degree must be dismissed because that crime is a lesser included offense of robbery in the second degree ( see CPL 300.40[b]), and thus we modify the judgment accordingly. Finally, the sentence is not unduly harsh or severe.