Opinion
March 15, 1977
Judgment of conviction of counts of robbery, first degree, rape, and possession of a weapon, after trial to a jury, Supreme Court, New York County, rendered September 5, 1974, unanimously modified, on the law, to dismiss the weapon count and otherwise affirmed. "Defendant, on the facts of this case, could not have committed the robbery without also committing the grand larceny [in this case, possession of a weapon], the counts being inclusory and concurrent (CPL 300.30, subd 4; People v Hayes, 43 A.D.2d 99, affd 35 N.Y.2d 907). Where the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b])." (People v Grier, 37 N.Y.2d 847, 848.)
Concur — Stevens, J.P., Murphy, Capozzoli, Markewich and Lynch, JJ.