Opinion
February 26, 1980
Judgment of the Supreme Court, New York County, rendered January 6, 1977 after trial, modified, on the law, to the extent of dismissing the count charging criminal possession of stolen property in the second degree, and vacating the sentence imposed therefor, and otherwise affirmed. In the circumstances disclosed by the evidence in this case, the count charging criminal possession of stolen property in the second degree was an inclusory concurrent count, all the elements of which were necessarily included in the robbery charges of which defendant was found guilty (CPL 300.30, subd 4). Indeed, upon argument, the People so conceded. As such the conviction on the robbery counts "is deemed a dismissal of every lesser count submitted, but not an acquittal thereon" (CPL 300.40, subd 3, par [b]; People v Johnson, 39 N.Y.2d 364; People v. Pyles, 44 A.D.2d 784). We modify accordingly.
Concur — Murphy, P.J., Birns, Markewich and Bloom, JJ.