An appeal was made by an accused man from a judgment of the Kings County Supreme Court convicting him of 4 counts of robbery in the first degree, 2 counts of robbery in the second degree and 4 counts of grand larceny in the third degree upon a jury verdict and imposing sentence.
Judgment was modified on the law by reversing the criminal convictions of robbery in the second degree and grand larceny in the third degree and the sentences imposed thereon and the said counts are dismissed. As so modified, the judgment is affirmed.
The first two counts of the indictment charge the robbery in the first degree acting in concert with other persons actually present in the robbery scene, forcibly stole certain property and that he and the other perpetrators displayed what appeared to be a firearm and used and threatened the use of a dangerous instrument. The fifth and sixth counts, respectively, repeat the same allegations as to the complainant. The theft of the same property specifically listed in the counts charging robbery in the first degree also constitute the basis of the convictions of robbery in the second degree and grand larceny in the third degree. The evidence firmly establishes that the accused perpetrated the robbery with the assistance of three other armed accomplices. Burglary was not charged.
The judgment convicting the accused of robbery in the first degree, robbery in the second degree and grand larceny in the third degree cannot stand without modification. The accused, on the facts of the case could not have committed robbery in the first degree without also committing robbery in the second degree and grand larceny in the third degree, as the latter counts are inclusory and concurrent.
When the verdict is comprised of inclusory concurrent counts, a verdict of guilty as to the greatest count is deemed a dismissal of every lesser count. Accordingly, the judgment must be modified by reversing the accused man’s convictions of robbery in the second degree and grand larceny in the third degree, and the sentences imposed thereon, and should, in all other respects, be affirmed.
On appeal, the accused asserts as error the prosecutor’s extensive cross-examination of him as to prior robbery offenses. There is, however, no error in cross-examining an accused as to matters covered by his direct testimony. Further, even if the prosecutor can be said to have exceeded the bounds of propriety in continuing the examination of the accused as to his criminal history, a subject which not only was first developed during direct examination, but which was continued without objection, the proof that the case is so overwhelming that any such error is harmless. The accused man’s remaining arguments are considered and found to be without merit.
One of the judges dissents in part and votes to affirm the conviction of robbery in the second degree and the sentences imposed thereon. He believes that the convictions as to the third and seventh counts, which charge robbery in the second degree, should be affirmed. He stated that robbery in the second degree under the Penal Law is not a lesser included offense of robbery in the first degree.
Robbery in the first degree does not require that an accomplice actually be present aiding the accused. The accused would have been guilty of robbery in the first degree (because he had a gun and he used and threatened the use of it) regardless of whether anyone else was actually present and aiding him. Therefore, since it was possible for the accused to have committed robbery in the first degree without concomitantly committing robbery in the second degree, robbery in the second degree is not a lesser included offense.
Threatening or endangering someone’s life should be enough reason to send that person in jail. A Kings County Criminal Attorney together with a Kings County Grand Larceny Lawyer from Stephen Bilkis and Associates will make sure that your perpetrator will be responsible for his unlawful actions. You may also ask for the legal representation of the Kings County Robbery Lawyer.