Opinion
December 11, 1978
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 10, 1975, convicting him of felony murder and two counts of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. Since the Trial Judge duly instructed the jury both on robbery and attempted robbery, and on the fact that an attempted robbery could form the basis for a felony murder conviction, the jury could have concluded that the felony murder in this case should be predicated on the uncharged attempted robbery of the deceased. The guilty verdict for the robberies of two of the decedent's companions may therefore rest on a separate and distinct factual foundation. Accordingly, the convictions of these two counts of robbery must stand (cf. People v. Barnes, 60 A.D.2d 654; People v De Gata, 64 A.D.2d 929). Gulotta, J.P., Cohalan, Margett and O'Connor, JJ., concur.