Opinion
December 23, 1974
Appeal by the defendant from a judgment of the County Court, Westchester County, rendered June 18, 1973, convicting him of robbery in the first degree, robbery in the second degree (three counts) grand larceny in the third degree, assault in the second degree and possession of a weapon, dangerous instrument and appliance, as a misdemeanor, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of grand larceny in the third degree and the sentence thereon, and the count for said crime is dismissed. As so modified, judgment affirmed. Defendant raised no issue as to whether the facts were established and such issue has not been considered. Under the facts of this case, defendant could not have committed robbery in the first degree without having also committed grand larceny in the third degree. Therefore, the guilty verdict on the count for robbery in the first degree required dismissal of the lesser grand larceny count (CPL 300.40, subd. 3, par. [b]; People v. Pyles, 44 A.D.2d 784). We have reviewed the other arguments raised by defendant and find them to be without merit. Martuscello, Acting P.J., Latham, Cohalan and Brennan, JJ., concur; Munder, J., dissents and votes to affirm.