Opinion
October 23, 1978
Appeal by defendant from a judgment of the County Court, Nassau County, rendered February 10, 1977, convicting him of robbery in the first and second degrees, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of robbery in the second degree, and the sentence imposed thereon. As so modified, judgment affirmed. Defendant was not specifically charged in the indictment with robbery in the second degree, and, under the facts of this case, it is not an inclusory concurrent count of the charged crime of robbery in the first degree of which defendant was convicted. Accordingly, the conviction for robbery in the second degree may not stand. Martuscello, J.P., Latham, Damiani and Titone, JJ., concur.