People v. Fondal

• Decision Date: 10 July 1978
• Parties: The PEOPLE, etc., Respondent, v. Barry FONDAL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 867

406 N.Y.S.2d 867

64 A.D.2d 638

The PEOPLE, etc., Respondent, v. Barry FONDAL, Appellant.

Supreme Court, Appellate Division,Second Department.

July 10, 1978.

William E. Hellerstein, New York City (Diana Budzanoski, New York City, of counsel; Ida Jones-Williams, New York City, on brief), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Vincent J. Carroll, Jr., Kew Gardens, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, SUOZZI, SHAPIRO and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from two judgments of the Supreme Court, Queens County, both rendered June 6, 1974, one convicting him of robbery in the third degree, upon a jury verdict, and imposing sentence (Indictment No. 3014/73) and the other convicting him of attempted robbery in the third degree, upon his plea of guilty, and imposing sentence (Indictment No. 1621/73).

Judgment as to Indictment No. 1621/73 affirmed. No opinion.

Judgment as to Indictment No. 3014/73 reversed, on the law, and, as a matter of discretion in the interest of justice, indictment dismissed.

In our opinion the trial court erred when it refused to charge criminal possession of stolen property in the third degree as a lesser included offense of robbery in the third degree (see People v. Hayes, 43 A.D.2d 99, 349 N.Y.S.2d 869, affd. 35 N.Y.2d 907, 364 N.Y.S.2d 897, 324 N.E.2d 365; People v. Henderson, 41 N.Y.2d 233, 391 N.Y.S.2d 563, 359 N.E.2d 1357).

The appellant has long since served his sentence and any possible period of parole. Accordingly, under the circumstances of this case, a dismissal of the indictment, rather than a new trial, is appropriate (see People v. Barnes, 58 A.D.2d 608, 395 N.Y.S.2d 232; cf. People v. Allen, 39 N.Y.2d 916, 386 N.Y.S.2d 404, 352 N.E.2d 591).