56 A.D.2d 957 | N.Y. App. Div. | 1977
Appeal from a judgment of the County Court of Franklin County, rendered May 10, 1976, upon a verdict convicting defendant of the crimes of burglary in the first degree, burglary in the second degree, robbery in the first degree, and two counts of assault in the third degree. The prosecution’s evidence revealed that the defendant broke into the complainant’s apartment at night, forcibly stole money from the complainant and committed assaults with a knife upon complainant and one Charles Lord. Defendant contends that various alleged errors of law were committed by the trial court which require the granting of a new trial. We have examined these contentions and find that they are without merit. There is, however, a problem arising out of the fact that the first count of the indictment accused the defendant of committing the crime of burglary in the first degree (Penal Law, § 140.30), under the theory that the defendant knowingly entered the dwelling at night with intent to commit the crimes of assault and larceny and while in the dwelling caused physical injury to Valerie Wheeler. The second count of the indictment is identical to the first except the theory underlying this count is that the defendant, while in the dwelling, caused physical injury to Charles Lord. It is apparent that counts