670 N.Y.S.2d 789 | N.Y. App. Div. | 1998
—Appeal by the defendant from a judgment of the Supreme Court, Kings County (George, J.), rendered April 29, 1996, convicting him of assault in the first degree, assault in the second degree (two counts), robbery in the first degree, robbery in the second degree, robbery in the third degree, criminal possession of a weapon in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions for assault in the first degree under the first count of the indictment, assault in the second degree under the third and fourth counts of the indictment, and robbery in the third degree under the eighth count of the indictment, and the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Although the defendant failed to preserve the issue of whether the court should have dismissed the lesser-included counts, preservation of this issue is unnecessary to obtain appropriate relief (see, People v Manuel, 237 AD2d 307; People v Hammond, 220 AD2d 684). The count of robbery in the third degree must be dismissed as a lesser-included offense of robbery in the first degree (see, People v Florentino, 196 AD2d 881). Additionally, under the facts of this case, the two counts of assault in the second degree must be dismissed as lesser-included offenses of robbery in the second degree (see, People v Shabazz, 49 AD2d 516), and the count of assault in the first degree must be dismissed as a lesser-included offense of robbery in the first degree (see, People v Manuel, supra, at 307).
The defendant’s remaining contentions are without merit. Miller, J. P., Sullivan, Pizzuto and Friedmann, JJ., concur.
