Opinion
January 13, 1978
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Dillon, Hancock, Jr., and Witmer, JJ.
Judgment unanimously modified in accordance with memorandum and, as modified, affirmed, Dillon, J., not participating. Memorandum: Defendant was indicted and tried on concurrent counts of first degree robbery and second degree robbery as a result of his involvement with two juveniles in an armed holdup of a gas station. Following a jury trial he was convicted on both counts and sentenced to concurrent indeterminate terms of imprisonment, with a maximum of seven and one-half years on the first degree robbery count and a maximum of six years on the count of second degree robbery. CPL 300.40 (subd 3, par [b]) provides that a verdict of guilty upon two or more inclusory concurrent counts of an indictment is deemed a dismissal of every lesser count submitted. Concurrent counts are inclusory when the offense charged in one count is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater (CPL 300.30, subd 4). A lesser included offense arises when it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree (CPL 1.20, subd 37). Upon the proof presented at trial it was impossible for defendant to have committed first degree robbery without concomitantly committing second degree robbery as charged in the second count of the indictment. Accordingly, the verdict of guilty on the count of first degree robbery required a dismissal of the lesser second degree robbery count (People v Webster, 54 A.D.2d 703; People v Wallace, 53 A.D.2d 1057; People v Cabrera, 49 A.D.2d 856; People v Randolph, 47 A.D.2d 888). The People concede that a modification of the judgment of conviction is required. The dismissal of the second degree robbery count does not affect the validity of the conviction on the remaining count (see People v Pyles, 44 A.D.2d 784). We have examined defendant's other contentions and find them to be without merit.