People v. Jackson , 54 A.D.2d 585 ( 1976 )

Appeal by defendant from (1) a judgment of the Supreme Court, Kings County, rendered April 28, 1972, convicting him of attempted robbery in the second degree and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence and (2) a judgment of the same court, rendered May 12, 1972, which, upon resentence, vacated the prior imposition of sentence upon the attempted grand larceny count and imposed a new sentence thereon. Appeal from so much of the judgment of April 28, 1972 as convicted defendant of attempted grand larceny in the third degree dismissed. Such portion of the judgment was superseded by the judgment on resentence. Judgment of April 28, 1972 otherwise affirmed. Judgment of May 12, 1972 reversed, on the law, and the count of attempted grand larceny in the third degree is dismissed. While the bolstering identification testimony was improperly admitted, the error, under the facts of this case, must be deemed harmless (see People v Caserta, 19 NY2d 18; People v Cassidy, 50 AD2d 803, 804). Defendant was therefore properly convicted of attempted robbery in the second degree. However, on the facts presented he could not have committed the crime of attempted robbery in the second degree without also committing attempted grand larceny in the third degree. The latter charge should therefore be dismissed as an inclusory concurrent count (see CPL 300.40, subd 3, par [b]; People v Johnson, 39 NY2d 364, 370; People v Smith, 51 AD2d 782). Hopkins, Acting P. J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.