Opinion
June 28, 1976
Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 25, 1974, convicting him of burglary in the second degree, burglary in the third degree, attempted petit larceny, criminal mischief in the fourth degree and resisting arrest, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of burglary in the third degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The appeal did not bring the fact findings up for review. Under the facts of this case, defendant could not have committed burglary in the second degree without having also committed burglary in the third degree. Therefore, the guilty verdict on the count of burglary in the second degree required dismissal of the lesser count of burglary in the third degree (CPL 300.40, subd 3, par [b]; People v Grier, 37 N.Y.2d 847; People v Sistrunk, 46 A.D.2d 914). We have reviewed the other arguments raised by defendant and find them to be without merit. Hopkins, Acting P.J., Latham, Cohalan, Titone and Hawkins, JJ., concur.