Sources show that one evening, the accused approached a motor vehicle which was idling outside a convenience store and falsely told the woman in the front passenger seat (hereinafter the passenger) that the vehicle’s rear tire was low. When the passenger got out to investigate, the accused jumped into the driver’s seat and shut the door. The passenger jumped back into the car and, as the accused tried to push her out of the moving vehicle, the passenger continued to struggle with the accused as he drove away. After driving approximately one half of a mile, the passenger succeeded in stopping the car, and the accused jumped out. The accused was arrested later that night after taking money and merchandise from a Dairy Barn drive-through store, and after leading the police on a high-speed chase through a residential area. Items found in his possession upon his arrest included cocaine, marijuana, a camcorder, DVD player, video game console, and stolen credit card.
After conviction, accused appeal from a judgment of the County Court, convicting him of reckless endangerment in the first degree, robbery in the second degree, grand larceny in the third degree, grand larceny in the fourth degree (two counts), petit larceny, criminal possession of stolen property in the third degree, criminal possession of stolen property in the fourth degree (five counts), criminal possession of stolen property in the fifth degree, criminal mischief in the second degree, criminal possession of a controlled substance in the fifth degree, criminal possession of a controlled substance in the seventh degree, unlawful possession of marijuana, and resisting arrest, upon a jury verdict, and imposing sentence.
The court ordered that the judgment is modified, on the law, by vacating the convictions of grand larceny in the fourth degree under count 6 of the indictment, petit larceny under count 8 of the indictment, and criminal possession of a controlled substance in the seventh degree under count 18 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed. The ruling is discussed in the following manner:
At trial, the accused testified to his consumption of narcotics and alcohol prior to these events; he also testified that he was thinking clearly, was aware of what he was doing, and intended to steal the idling vehicle. The County Court properly declined his request to charge the jury with respect to intoxication since the evidence was insufficient to conclude that a reasonable juror might find that his intent was affected by the narcotics or alcohol that he allegedly consumed prior to committing these offenses. Viewing the evidence in the light most favorable to the prosecution, it was legally sufficient to establish the elements of robbery in the second degree.
The accused correctly contends, and the People concede, that the conviction of grand larceny in the fourth degree under count 6 of the indictment must be dismissed as an inclusory concurrent count of grand larceny in the third degree under count 5 of the indictment, that the conviction of petit larceny under count 8 of the indictment must be dismissed as an inclusory concurrent count of grand larceny in the fourth degree under count 7 of the indictment, and that the conviction of criminal possession of a controlled substance in the seventh degree under count 18 of the indictment must be dismissed as an inclusory concurrent count of criminal possession of a controlled substance in the fifth degree under count 17 of the indictment.
“If it is impossible to commit an offense without, by the same conduct, concomitantly committing another offense of lesser degree, the latter is a ‘lesser included offense’ of the former”. Contrary to the defendant’s contention, his conviction of criminal possession of stolen property in the fourth degree under count 10 of the indictment, based on theft of a motor vehicle, is not a lesser-included offense of criminal possession of stolen property in the third degree under count 9 of the indictment, based on the defendant’s possession of stolen property valued in excess of $3,000 consisting of an automobile, since it is possible to steal property worth more than $3,000 without stealing a motor vehicle.
The sentence imposed was not excessive. The remaining contentions, including those raised in his supplemental pro se brief, are without merit.
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