Opinion
December 2, 1982
Judgment, Supreme Court, Bronx County (Warner, J.), rendered March 25, 1981 convicting defendant, after jury trial, of robbery in the second degree (Penal Law, § 160.10) and petit larceny (Penal Law, § 155.25), and sentencing him thereon, is unanimously modified, on the law, to the extent that the conviction of petit larceny under the third count of the indictment is reversed, and that count is dismissed (see CPL 300.40, subd 3, par [b]), and the judgment is otherwise affirmed. Petit larceny is a lesser included offense of the crime of robbery of which defendant was convicted.
Concur — Fein, Milonas and Kassal, JJ.; Markewich, J.P., and Silverman, J., adhere to the view expressed in Justice Silverman's dissent in People v Gaul ( 63 A.D.2d 563, 564), that such modification "is a useless diversion of the time and energies of court and counsel, not required by statute." However, by the same token, it is not worth a dissent.