Opinion
May 25, 1976
Judgment, Supreme Court, New York County, rendered June 28, 1973, convicting defendant, after a jury trial, of robbery in the first degree (two counts), robbery in the second degree, and possession of a weapon as a misdemeanor (two counts), unanimously modified, on the law, to the extent of reversing the conviction on the possession of a weapon as a misdemeanor counts, vacating the sentences imposed thereon and dismissing those counts of the indictment and, as so modified, the judgment is affirmed. The District Attorney concedes that, under the circumstances of this case, the counts of possession of a weapon as a misdemeanor were lesser included concurrent counts to the counts of robbery in the first degree. Defendant's contention that the prosecutor's summation was so improper as to deprive defendant of a fair trial has been examined and found to be without merit. Although not a model of perfection, the summation, viewed as a whole and in the context of the relatively uncomplicated nature of this case, may not be characterized as frustrating the jury in reaching a fair and proper determination on the factual issues based solely upon the evidence. Also, the sentences imposed are clearly not excessive.
Concur — Markewich, J.P., Kupferman, Lupiano, Silverman and Lynch, JJ.