People v. Cotton , 51 A.D.2d 750 ( 1976 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered October 16, 1973, upon resentence, convicting him of robbery in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of grand larceny in the third degree and the sentence thereon, and the said count is dismissed. As so modified, judgment affirmed. We have already held, on the facts of a similar case, that the defendant could not have committed robbery in the first degree without at the same time having committed grand larceny in the third degree. (People v Matos, 50 AD2d 872). We so hold here (see People v Grier, 37 NY2d 847). Accordingly, the guilty verdict on the robbery count requires that the lesser included count be dismissed. We have considered defendant’s remaining arguments and find them to be without merit. Martuscello, Acting P. J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.