Opinion
October 22, 1979
Appeal by defendant from a judgment of the County Court, Westchester County, rendered March 29, 1978, convicting him of robbery in the second degree, assault in the second degree and criminal possession of a weapon in the fourth degree, upon a plea of guilty, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the second degree and the sentence imposed thereon and the said count is dismissed. As so modified, judgment affirmed. On the facts of this case, the defendant could not have committed robbery in the second degree, predicated upon physical injury caused to the victim, without also having committed assault in the second degree. The assault conviction is an inclusory concurrent count of the robbery conviction and must be dismissed (CPL 300.40, subd 3, par [b], People v Thompson, 59 A.D.2d 672). Cohalan, J.P., Margett, Martuscello and Gibbons, JJ., concur.