People v. Reynolds
| Decision Date | 06 July 1976 |
| Citation | 53 A.D.2d 877,385 N.Y.S.2d 337 |
| Parties | The PEOPLE, etc., Respondent, v. Vernon REYNOLDS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Zerin, Cooper & Horlick, Brooklyn (Jay Gregory Horlick, Brooklyn, of counsel), for appellant.
Eugene Gold, Dist. Atty., Brooklyn (Eugene H. Scher, Brooklyn, of counsel), for respondent.
Before HOPKINS, Acting P.J., and LATHAM, COHALAN, TITONE and HAWKINS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 23, 1974, convicting him of robbery in the first degree, robbery in the second degree (4 counts), grand larceny in the third degree (2 counts), assault in the second degree (2 counts), assault in the third degree (2 counts) and possession of weapons, etc., as a felony, upon a jury verdict, and imposing sentence.
Judgment modified, on the law, by reversing the convictions of robbery in the second degree (under count 2 of the indictment), grand larceny in the third degree (under counts 4 and 11) and assault in the third degree (under count 7) and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The findings of fact are affirmed.
The crimes of robbery in the second degree (under count 2) and grand larceny in the third degree (under count 4) are lesser included offenses of robbery in the first degree for which appellant stands convicted under count 1 of the indictment. Further, assault in the third degree (under count 7) is a lesser included offense of assault in the second degree (under count 6) of which defendant stands convicted, and the crime of grand larceny in the third degree (under count 11), is a lesser included offense of robbery in the second degree (under count 9), of which appellant stands convicted. Thus the convictions under counts 2, 4, 7 and 11 must be reversed and those counts dismissed (see People v. Grier 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471; People v. Phillips, 50 A.D.2d 937, 377 N.Y.S.2d 200). The People candidly concede as much and also correctly (in our opinion) note that the remaining convictions which appellant would have us reverse and dismiss as lesser included offenses contain separate elements which are not included in the greater convictions. We particularly note that appellant used gratuitous violence during the robbery and that the weapon possession vis-a$-vis the arresting officers was independent of the robbery (see ...
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Wyatt v. State
...(Section 13A-6-21(a)(1), (2) and (3)) within the meaning of Section 13A-1-9 defining lesser included offenses. People v. Reynolds, 53 A.D.2d 877, 385 N.Y.S.2d 337 (1976). We conclude that the defendant was not prejudiced or injured by the failure to conduct a second arraignment upon his ret......