Opinion
2001-05700
Argued May 23, 2003.
September 22, 2003.
Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered May 23, 2001, convicting him of robbery in the first degree (six counts), robbery in the second degree (two counts), and robbery in the third degree (six counts), upon a jury verdict, and sentencing him to consecutive determinate terms of 20 years imprisonment on each of the convictions of robbery in the first degree, determinate terms of 15 years imprisonment on each of the convictions of robbery in the second degree, and determinate terms of 2 1/3 to 7 years imprisonment on each of the convictions of robbery in the third degree, with the sentences for the convictions of robbery in the second degree and robbery in the third degree to run concurrently with each other and with the sentences imposed for the convictions for robbery in the first degree. The appeal brings up for review the denial, after a hearing (Ort, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
Virginia Boccio, North Massapequa, N.Y., for appellant.
Denis Dillon, District Attorney, Mineola, N.Y. (Karen Wigle Weiss and John F. McGlynn of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law and as a matter of discretion, by (1) vacating the convictions of robbery in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment, and (2) providing that all the remaining terms of imprisonment imposed shall run concurrently with each other; as so modified, the judgment is affirmed.
The defendant was convicted of the robberies of various gas stations. Contrary to the defendant's contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress statements he made to law enforcement officials. The defendant made the statements approximately seven hours after he was arrested, after he had been advised of his Miranda rights ( see Miranda v. Arizona, 384 U.S. 436), and after he had been confronted with still-frame photos of a video taken by a gas station security camera during one of the robberies. Accordingly, any taint which may have been caused by an illegal arrest had fully dissipated before the defendant made the challenged statements ( see People v. Rogers, 52 N.Y.2d 527, 532-533, cert denied 454 U.S. 898; People v. Cooke, 299 A.D.2d 419; People v. O'Brien, 178 A.D.2d 617, 618; People v. Davis, 120 A.D.2d 606).
As the People correctly concede, the defendant's convictions of robbery in the third degree are lesser-included offenses of his convictions of robbery in the first degree ( see Penal Law § 160.05, 160.15). Therefore, the defendant's convictions of robbery in the third degree, and the sentences imposed thereon, must be vacated and those counts of the indictment dismissed ( see People v. Richmond, 288 A.D.2d 241, 242; People v. Gethers, 212 A.D.2d 544).
Although the defendant committed six distinct crimes, we find that under the circumstances of this case, the sentences imposed should run concurrently ( see People v. Cintron, 122 A.D.2d 221).
The defendant's remaining contention is without merit.
SANTUCCI, J.P., FLORIO, SCHMIDT and ADAMS, JJ., concur.