Opinion
November 30, 1967
Judgment convicting defendant of robbery in the first degree under the first count of the indictment, of robbery in the first degree under the fifth count, and of criminally possessing a pistol as a felony under the fourth count, unanimously modified, on the law and the facts, to the extent of reversing the conviction under the fifth count, vacating the sentence imposed on that conviction and dismissing said count, and as so modified the judgment is affirmed. We are in accord with the commendable position of the District Attorney regarding the deficiency of proof relative to the fifth count. The conviction under the first and fourth count is supported by the record.
Concur — Botein, P.J., Stevens, Capozzoli, Tilzer and Rabin, JJ.