Opinion
June 13, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 29, 1975, convicting him of robbery in the first degree (two counts), possession of a weapon, as a felony, escape in the second degree, unlawful imprisonment in the first degree and menacing, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of robbery in the first degree, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. We hold, and the People concede, that in view of the circumstances present here the jury reached a repugnant verdict when it convicted defendant on the counts of robbery in the first degree while acquitting him on the counts of grand larceny in the third degree (cf. People v Carbonell, 40 N.Y.2d 948). We find that defendant's contention that the Trial Judge erroneously refused to charge the defense of justification (see Penal Law, § 35.15) is academic. That defense relates to the robbery counts, which counts have been dismissed. Hopkins, J.P., Rabin, Hawkins and O'Connor, JJ., concur.