People v. Scott
| Decision Date | 28 June 1976 |
| Citation | 384 N.Y.S.2d 878,53 A.D.2d 703 |
| Parties | The PEOPLE, etc., Respondent, v. Warren SCOTT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Barry G. Bell, New York City, for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Stephen C. Unsino, White Plains, of counsel), for respondent.
Before HOPKINS, Acting P.J., and MARTUSCELLO, RABIN, SHAPIRO and TITONE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Westchester County, rendered December 27, 1973, convicting him of robbery in the first degree, robbery in the second degree, grand larceny in the second degree and possession of a weapon, etc., as a misdemeanor, upon a jury verdict, and imposing sentence.
Judgment modified, on the law, by reversing the convictions of robbery in the second degree and grand larceny in the second degree and, as a matter of discretion in the interest of justice, by reversing the conviction of possession of a weapon, etc., as a misdemeanor, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed.
Conviction on the charge of robbery in the first degree requires a dismissal of the inclusory concurrent counts of robbery in the second degree and grand larceny in the second degree (see CPL 300.40, subd. 3, par. (b); People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471).
The presumption contained in section 265.15 (subd. 3) of the Penal Law was improperly charged in light of the fact that the undisputed evidence established that the weapon in question was observed in the Actual possession of a person other than the defendant just prior to the apprehension of the defendant (Penal Law, 265.15, subd. 3, cl. (a); People v. Garcia, 41 A.D.2d 560, 561, 340 N.Y.S.2d 35, 36; People v. Davis, 52 Misc.2d 184, 185, 186, 275 N.Y.S.2d 607, 608; People v. Logan, 94 N.Y.S.2d 681, 683--684, mod. 276 App.Div. 1029, 95 N.Y.S.2d 806).
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