| N.Y. App. Div. | Dec 9, 1977
Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: Defendant was convicted of robbery in the first degree (Penal Law, § 160.15, subd 4) and robbery in the second degree (Penal Law, § 160.10, subd 1), arising out of the robbery of a gas station attendant by a gang of youths. Defendant himself did not display a weapon. His conviction for robbery in the first degree was necessarily based upon proof that one of the participants displayed what appeared to be a rifle. Such proof would also necessarily constitute the proof required for a conviction of robbery in the second degree upon the ground that the defendant participated in a robbery while "aided by another person actually present” (Penal Law, § 160.10, subd 1). Therefore the count of robbery in the second degree was inclusory and concurrent with the count of first degree robbery. It should be reversed, and the count dismissed under CPL 300.40 (subd 3, par [b]). Points raised by defendant in regard to his conviction for robbery in the first degree do not merit reversal of that conviction. The sentence should be reduced as a matter of discretion in the interest of justice to an indeterminate sentence having a minimum of three years and a. maximum of 10 years. (CPL 470.15, subd 3, par [c]; subd 6, par [b].) (Appeal from judgment of Erie County Court—robbery, first degree, and another charge.) Present—Marsh, P. J., Dillon, Hancock, Jr., Denman and Witmer, JJ.