Opinion
June 26, 1984
Judgment, Supreme Court, Bronx County (William Holland, J.), rendered June 16, 1982, convicting defendant, after a jury trial, of robbery in the second degree and assault in the second degree, and sentencing him to concurrent indeterminate terms of imprisonment of 4 1/2 to 9 years on the robbery count and 2 1/2 to 5 years on the assault count, unanimously modified, on the law and the facts, to vacate the conviction of assault in the second degree and the sentence of 2 1/2 to 5 years imposed thereon, and otherwise affirmed. ¶ The events giving rise to the conviction were that the defendant grabbed the victim around the neck, on a stairway in a Bronx apartment building, knocking her to the ground, punching her in the face and threatening her with death as he grabbed her bag and fled. ¶ The assault in the second degree conviction must be vacated as necessarily encompassed in the concurrent crime of robbery in the second degree ( People v Thompson, 59 A.D.2d 672). As that case holds, where a verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greater count is deemed a dismissal of every lesser count (CPL 300.30, 300.40 Crim. Proc., subd 3, par [b]; People v. Grier, 37 N.Y.2d 847, 848, modfg 45 A.D.2d 688). ¶ Under CPL 300.50, assault in the second degree is necessarily a lesser included offense of robbery in the second degree, which, by definition is committed whenever a defendant forcibly steals property and causes physical injury to any person who is not a participant in the crime (Penal Law, § 160.10, subd 2, par [a]). This issue could not have been waived because it would have been inappropriate to submit these counts in the alternative (CPL 300.40, 300.50 Crim. Proc.).
Concur — Ross, J.P., Asch, Bloom, Fein and Alexander, JJ.