Opinion
March 28, 1977
Judgment, Supreme Court, Bronx County, rendered after trial to a jury, October 25, 1974, unanimously modified, on the law, to vacate the convictions for attempted petit larceny and possession of a weapon and to dismiss those counts, and otherwise to affirm the conviction of attempted robbery, first degree. "Defendant, on the facts of this case, could not have committed the robbery [here an attempt] without also committing the grand larceny [here the two counts dismissed], the counts being inclusory and concurrent (CPL 300.30, subd 4; People v Hayes, 43 A.D.2d 99, affd 35 N.Y.2d 907). Where the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b])." (People v Grier, 37 N.Y.2d 847, 848.)
Concur — Kupferman, J.P., Lupiano, Silverman, Lane and Markewich, JJ.