People v. Gunner , 27 N.Y.2d 678 ( 1970 )

Memorandum. The judgment of the Appellate Division should be modified pursuant to subdivision 2 of section 543 of the Code of Criminal Procedure by reducing the degree of crime for which defendant is convicted on the common-law count of the indictment from murder, first degree, to murder, second degree, and, as so modified, judgment affirmed and defendant remanded to the County Court for resentence.

Defendant’s indictment charged him with two counts of first degree murder — felony murder and common-law murder. The first trial resulted in his conviction of felony murder and murder, second degree, under the common-law count. Upon retrial, he was convicted of felony murder and murder, first degree, under the common-law count. Having been convicted of murder, second degree, instead of murder, first degree, under the common-law count at the first trial, he could be tried for no more than murder, second degree, at the second trial. (People v. Ressler, 17 N Y 2d 174.) It is necessary, therefore, to reduce the conviction of the defendant from first degree murder to second degree murder.

We have considered the other arguments advanced by the defendant and find them without substance.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Judgment modified in accordance with the memorandum herein, and, as so modified, affirmed.