Summary
holding that, although two persons were injured during the course of a robbery, only one conviction could stand because there was only one taking of property
Summary of this case from State v. FranklinOpinion
June 9, 1995
Appeal from the Ontario County Court, Henry, Jr., J.
Present — Pine, J.P., Lawton, Wesley, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in determining that there was an independent basis to support the admission of the identification testimony of three witnesses. We disagree. Because the pretrial procedure used to identify defendant was improper (see, People v Brinson, 186 A.D.2d 1063), the People had to prove by clear and convincing evidence that there was an independent basis for the in-court identifications of defendant (see, People v. Ballott, 20 N.Y.2d 600, 606-607; Katz and Shapiro, New York Suppression Manual § 24.05). Here, the court's determination that there was an independent basis is supported by clear and convincing evidence that the three witnesses had ample opportunity to observe the perpetrator during the commission of the crimes (see, e.g., People v. Jordan, 178 A.D.2d 1009, 1010, lv denied 79 N.Y.2d 920; People v. Androvett, 135 A.D.2d 640, 642, lv denied 71 N.Y.2d 892; People v. Sorenson, 112 A.D.2d 1016, 1017; People v Mosley, 110 A.D.2d 937, 938-939; People v. Chamberlain, 96 A.D.2d 959, 960; People v. Graham, 67 A.D.2d 172).
Defendant further contends that his sentence was harsh and excessive because the court imposed a greater sentence following a retrial after his conviction was reversed on appeal. The court set forth a legitimate and reasoned basis for the enhanced sentence, and we conclude that the sentence is not unduly harsh or severe (see generally, People v. Miller, 65 N.Y.2d 502, 507-511, cert denied 474 U.S. 951).
The contention of defendant that his conviction of sodomy, sexual abuse and robbery merged with his kidnapping conviction has not been preserved for our review (see, CPL 470.05; People v. Geer, 188 A.D.2d 1014, lv denied 81 N.Y.2d 1073; People v. Salimi, 159 A.D.2d 658, lv denied 76 N.Y.2d 742), and, in any event, that contention is without merit.
We agree with the contention of defendant, however, that count five of the indictment must be dismissed. Defendant was convicted of count four of the indictment, which charged him with forcibly stealing property from one person while using a dangerous instrument to cause injury to another. Defendant was also convicted of count five of the indictment, which is identical to count four except that it charged defendant with having caused physical injury to a third person. Although two different individuals were injured, defendant may be convicted of only one count of robbery because there was only one forcible taking of property (see generally, People v. Griswold, 174 A.D.2d 1038, lv denied 78 N.Y.2d 1011; People v. Martinez, 126 A.D.2d 942; People v. Perrin, 56 A.D.2d 957). We, therefore, modify the judgment on appeal by reversing defendant's conviction under count five of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment.
We further conclude that defendant's conviction of assault in the second degree under counts 10 and 11 of the indictment cannot stand. Those counts, which charged defendant with assault in the second degree in violation of Penal Law § 120.05 (6), are lesser included offenses of counts six and seven of the indictment. Those counts charged defendant with robbery in the second degree in violation of Penal Law § 160.10 (2) (a) (see, People v Patterson, 192 A.D.2d 1083; People v. Rogers, 139 A.D.2d 782). Because defendant was convicted of the greater offenses, the lesser inclusory concurrent counts of the indictment must be dismissed (see, CPL 300.40 [b]; see generally, People v Robinson, 45 N.Y.2d 448, 453-454; People v. Grier, 37 N.Y.2d 847, 848). Consequently, we further modify the judgment by reversing defendant's conviction under counts 10 and 11 of the indictment, vacating the sentences imposed thereon and dismissing those counts of the indictment.
We have reviewed the remaining contentions of defense counsel and defendant in his pro se supplemental brief and conclude that they are without merit.