Opinion
March 9, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered October 10, 1979, convicting him of robbery in the third degree, attempted robbery in the third degree, grand larceny in the third degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, as a matter of discretion in the interest of justice, by reducing the conviction of grand larceny in the third degree to one of petit larceny. As so modified, judgment affirmed. We agree with the defendant that the indictment was insufficient to support his conviction of grand larceny in the third degree accomplished by extortion (see Penal Law, §§ 155.45; 155.30, subd 6 [L 1969, ch 115, § 3]). This is conceded, with commendable candor, by the District Attorney. The evidence presented did establish the crime of petit larceny. Accordingly, defendant's conviction of grand larceny in the third degree should be reduced to one of petit larceny. Since defendant has already served the maximum time to which he could be sentenced on the petit larceny conviction, there is no need to remand for resentence (see Penal Law, § 155.25, 70.15 Penal; People v Bell, 55 A.D.2d 624). We have examined defendant's remaining contention and find it to be without merit. Titone, J.P., Gibbons, O'Connor and Thompson, JJ., concur.