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People v. Garcia

Appellate Division of the Supreme Court of New York, Second Department
Sep 18, 1995
219 A.D.2d 669 (N.Y. App. Div. 1995)

Opinion

September 18, 1995

Appeal from the Supreme Court, Kings County (Vaughan, J.).


Ordered that the judgment is affirmed.

There is no merit to the defendant's contention that the trial court erred in refusing his request to charge grand larceny in the fourth degree as a lesser-included offense of robbery in the first degree. To establish entitlement to a lesser-included offense charge, the defendant must show (1) that it is impossible to commit the greater offense without concomitantly committing, by the same conduct, the lesser offense (see, CPL 1.20; People v Glover, 57 N.Y.2d 61, 63), and (2) that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense, but not the greater (People v Glover, supra, at 63). Unlike grand larceny in the fourth degree, robbery in the first degree does not require that property stolen be "taken from the person of another" (see, Penal Law § 155.30; § 160.15). Since grand larceny in the fourth degree requires demonstration of an element not required by robbery in the first degree, it fails the impossibility test (see, People v Green, 56 N.Y.2d 427, 433; People v Addison, 73 A.D.2d 790, 791). Although there exists a reasonable view of the evidence which would warrant a finding that the defendant committed the lesser offense of grand larceny in the fourth degree but not the greater offense of robbery in the first degree (see, People v Henderson, 41 N.Y.2d 233, 236), the trial court, when dealing with noninclusory concurrent counts, is not required to submit both counts to the jury (see, People v Williams, 47 A.D.2d 262, 265).

The defendant's sentence was not excessive (see, People v Suitte, 90 A.D.2d 80, 84). Balletta, J.P., Copertino, Pizzuto and Krausman, JJ., concur.


Summaries of

People v. Garcia

Appellate Division of the Supreme Court of New York, Second Department
Sep 18, 1995
219 A.D.2d 669 (N.Y. App. Div. 1995)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LUIS GARCIA, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 18, 1995

Citations

219 A.D.2d 669 (N.Y. App. Div. 1995)
631 N.Y.S.2d 384

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