Opinion
April 24, 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 6, 1975 (the date on the clerk's extract is March 13, 1975), convicting him of robbery in the first degree, grand larceny in the third degree and unlawful imprisonment in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of grand larceny in the third degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Since it clearly appears that, under the facts of this case, defendant could not have committed robbery in the first degree without also having committed grand larceny in the third degree, the guilty verdict as to the former count required the dismissal of the latter count as a matter of law (see CPL 300.40, subd 3, par [b]; People v Grier, 37 N.Y.2d 847; People v Johnson, 54 A.D.2d 586). Titone, J.P., Suozzi, Margett and O'Connor, JJ., concur.