Opinion
March 25, 1975
Judgment, Supreme Court, New York County, rendered October 4, 1972, convicting defendant, upon a jury verdict, of robbery in the third degree, grand larceny in the third degree and burglary in the third degree, unanimously modified, on the law, to the extent of reversing defendant's conviction on the grand larceny count and dismissing same and, insofar as it imposes sentence, unanimously reversed, on the law, and the case remanded for resentencing, and otherwise affirmed. Under the circumstances of this case, the jury could not have found defendant guilty of robbery in the third degree without also finding him guilty of grand larceny in the third degree. Accordingly, the conviction on the robbery count requires a dismissal of the grand larceny count. (CPL 300.40, subd. 3, par. [b]; People v Pyles, 44 A.D.2d 784.) At the time of sentencing, the court failed to afford defendant or his counsel an opportunity to make a statement. Such failure requires a reversal and a remand for resentencing only. (People v McClain, 35 N.Y.2d 483; People v Lotz, 42 A.D.2d 900.)
Concur — Kupferman, J.P., Murphy, Tilzer, Lane and Nunez, JJ.