Opinion
No. 2006-03711.
March 4, 2008.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered April 6, 2006, convicting him of robbery in the first degree, robbery in the second degree (two counts), robbery in the third degree (two counts), and grand larceny in the fourth degree (two counts), upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, and Marie John-Drigo of counsel), for respondent.
Before: Spolzino, J.P., Santucci, Angiolillo and Balkin, JJ.,
Ordered that the judgment is modified, on the law, by vacating the convictions of robbery in the third degree and the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
As correctly conceded by the People, the two counts of robbery in the third degree were inclusory concurrent counts of the robbery in the first degree count and one count of robbery in the second degree ( see CPL 300.30; People v Hutson, 43 AD3d 959, lv denied 9 NY3d 1006; People v Curry, 302 AD2d 538; People v Boyer, 295 AD2d 529). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count ( see CPL 300.40). Therefore, the convictions of robbery in the third degree must be vacated and those counts of the indictment dismissed ( see People v Lee, 39 NY2d 388; People v Hutson, 43 AD3d 959, lv denied 9 NY3d 1006).
The defendant's failure to raise an objection to the remarks made by the prosecutor on summation renders his claim that he was denied his right to a fair trial unpreserved for appellate review ( see CPL 470.05; People v Garner, 27 AD3d 764).
However, the defendant is correct that the court erred in striking his testimony that the car which was implicated in three of the robberies did not belong to him and had been borrowed from the owner, who also used to lend it to four or five other people. Furthermore, contrary to the People's contention, this issue was preserved for appellate review. Nevertheless, the error was harmless as there was overwhelming evidence of the defendant's guilt, and no significant probability that the error contributed to his convictions ( see People v Crimmins, 36 NY2d 230, 237; People v Rush 44 AD3d 799, lv denied 9 NY3d 1009).
The sentence imposed was not excessive ( see People v Suitte, 90 AD2d 80).