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People v. Shuler

Appellate Division of the Supreme Court of New York, Second Department
Dec 29, 1975
50 A.D.2d 908 (N.Y. App. Div. 1975)

Opinion

December 29, 1975


Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 25, 1974, convicting him, inter alia, of robbery in the first degree, assault in the second degree and possession of a weapon, dangerous instrument and appliance (two counts), after a nonjury trial, and imposing sentence. Judgment modified, on the law, by deleting therefrom the conviction and sentence for possession of a weapon, dangerous instrument and appliance under the sixth count of the indictment, and by dismissing said count. As so modified, judgment affirmed. Under the facts of this case, the charge of possession of a weapon under the sixth count of the indictment (a tree branch) is inclusory in the conviction of assault in the second degree (CPL 1.20, subd 37). Where a 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 [6]). Accordingly, the conviction of possession of a weapon under the sixth count must be dismissed (People v Grier, 37 N.Y.2d 847; People v Pyles, 44 A.D.2d 784), and the judgment in all other respects should be affirmed. Martuscello, Acting P.J., Latham, Margett, Brennan and Shapiro, JJ., concur.


Summaries of

People v. Shuler

Appellate Division of the Supreme Court of New York, Second Department
Dec 29, 1975
50 A.D.2d 908 (N.Y. App. Div. 1975)
Case details for

People v. Shuler

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ALLEN SHULER, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 29, 1975

Citations

50 A.D.2d 908 (N.Y. App. Div. 1975)

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