People v. Rodrigues

• Citation: 74 A.D.3d 1818,902 N.Y.S.2d 750
• Parties: The PEOPLE of the State of New York, Respondent, v. Sara N. RODRIGUES, Defendant-Appellant.
• Decision Date: 11 June 2010
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 750
74 A.D.3d 1818

The PEOPLE of the State of New York, Respondent,
v.
Sara N. RODRIGUES, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 11, 2010.

902 N.Y.S.2d 751

Kathleen P. Reardon, Rochester, for Defendant-Appellant.

Cindy F. Intschert, District Attorney, Watertown (Nicole L. Kyle of Counsel), for Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, GREEN, AND GORSKI, JJ.

MEMORANDUM:

74 A.D.3d 1818

Defendant appeals from a judgment convicting her upon a jury verdict of, inter alia, four counts of robbery in the first degree (Penal Law § 160.15[3] ); six counts of robbery in the second degree (§ 160.10 [1], [2][a] ); three counts of burglary in the first degree (§ 140.30[2], [3] ); one count of burglary in the second degree (§ 140.25[1][d] ); two counts of assault in the second degree (§ 120.05[6] ); and four counts of petit larceny (§ 155.25). We reject the contention of defendant that the evidence

74 A.D.3d 1819

is legally insufficient to establish her accessorial liability ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Contrary to the further contention of defendant, we conclude that the testimony of her accomplices was sufficiently corroborated ( see generally People v. Besser, 96 N.Y.2d 136, 143-144, 726 N.Y.S.2d 48, 749 N.E.2d 727; People v. Delgado, 50 A.D.3d 915, 917, 855 N.Y.S.2d 253).

We agree with defendant, however, that counts 15 and 16 of the indictment, for assault in the second degree, and counts 20, 24, 28 and 30, for petit larceny, must be dismissed as lesser inclusory concurrent counts. We therefore modify the judgment accordingly. Although defendant concedes that she failed to preserve that contention for our review, preservation is not required, and those counts "must be dismissed as a matter of law because 'a verdict of guilty upon the greater [count] is deemed a dismissal of every lesser [inclusory concurrent count]' " ( People v. Moore, 41 A.D.3d 1149, 1152, 837 N.Y.S.2d 480, lv. denied 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758, 9 N.Y.3d 992, 848 N.Y.S.2d 609, 878 N.E.2d 1025, quoting People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579). "[C]oncurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a lesser offense included within the greater" ( People v. Scott, 61 A.D.3d 1348, 1350, 877 N.Y.S.2d 536, lv. denied 12 N.Y.3d 920, 884 N.Y.S.2d...