Opinion
February 10, 1986
Appeal from the County Court, Nassau County (Samenga, J.).
Judgment affirmed.
On appeal, defendant seeks to have his conviction for grand larceny in the third degree reversed on the theory that that crime is an inclusory concurrent count of robbery in the first degree (see, CPL 300.40 [a]). Defendant's plea of guilty forecloses him from raising this claim (see, People v. Walton, 41 N.Y.2d 880).
In any case, grand larceny in the third degree is not a lesser included offense of robbery in the first degree, since it is theoretically possible to commit robbery in the first degree (see, Penal Law § 160.15) without concomitantly, by the same conduct, committing grand larceny in the third degree (see, Penal Law § 155.30), if no property is taken from the person of the victim (see, People v. Ford, 91 A.D.2d 589, revd on other grounds 62 N.Y.2d 275; People v. Addison, 73 A.D.2d 790). Accordingly, had this claim been properly before us, it would have been rejected.
Equally unavailing is defendant's claim that the sentence imposed was excessive. Since defendant has already served his sentence, the issue is moot. In any event, defendant received the sentence that had previously been agreed upon during plea negotiations. He, therefore, has no cause to complain that the sentence was harsh or excessive (see, People v. Kazepis, 101 A.D.2d 816). Mollen, P.J., Gibbons, Brown, Niehoff and Eiber, JJ., concur.