Opinion
December 27, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 4, 1976, convicting him of murder in the second degree (two counts) on theories of specific intent and felony murder, robbery in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of murder in the second degree (under the first count of the indictment, alleging specific intent) and robbery in the first degree, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The People's proof failed to establish a separate, specific intent to commit murder on the part of the defendant since it was nowhere shown that he actually fired the fatal shots (see People v Ozarowski, 38 N.Y.2d 481). Under the facts of this case, defendant could not have committed felony murder without having also been guilty of robbery. Therefore, the guilty verdict on the felony murder count required dismissal of the lesser included crime of robbery in the first degree (see People v Grier, 37 N.Y.2d 847). We have considered defendant's other contentions and find them to be without merit. Latham, J.P., Cohalan, Damiani and O'Connor, JJ., concur.