Opinion
July 12, 1976
Appeal from the Monroe County Court.
Present — Cardamone, J.P., Mahoney, Dillon, Goldman and Witmer, JJ.
Judgment unanimously modified, on the law, in accordance with memorandum and as modified affirmed. Memorandum: Judgment was entered upon a jury verdict convicting each defendant of robbery in the first degree, robbery in the second degree, burglary in the first degree, and grand larceny in the third degree. Additionally, defendant Gatson was convicted of two counts of murder. The robbery in the second degree and grand larceny in the third degree counts are, on the facts of this case, inclusory concurrent counts of robbery in the first degree (CPL 300.30, subd 4; People v Anderson, 51 A.D.2d 858; People v Cabrera, 49 A.D.2d 856; People v Hayes, 43 A.D.2d 99, affd 35 N.Y.2d 907). Thus, the convictions upon the first degree robbery count are deemed dismissals of both lesser counts (CPL 300.40, subd 3, par [b]; People v Grier, 37 N.Y.2d 847). Defendants' convictions of robbery in the second degree and grand larceny in the third degree are reversed, those counts are dismissed and, otherwise, the judgments are affirmed.