PEOPLE v. WHITEHURST

ORDERED that the judgment is modified, on the law, by vacating the conviction of robbery in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

As the People correctly concede, the defendant's conviction of robbery in the third degree was an inclusory concurrent count of the conviction of robbery in the first degree. Thus, the conviction of robbery in the third degree must be vacated and that count of the indictment dismissed ( see People v. Green, 56 N.Y.2d 427, 430; People v. Florentino, 196 A.D.2d 881).

The defendant's arguments regarding alleged prosecutorial misconduct during summation are unpreserved for appellate review ( see CPL 470.05; People v. Harripersaud, 4 A.D.3d 375). In any event, the challenged remarks constituted fair comment on the evidence ( see People v. Ashwal, 39 N.Y.2d 105), were responsive to arguments presented in the defense counsel's summation ( see People v. Galloway, 54 N.Y.2d 396), or were harmless in light of the overwhelming evidence of the defendant's guilt ( see People v. Crimmins, 36 N.Y.2d 230).

The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).

The defendant's remaining contention is without merit.

SMITH, J.P., H. MILLER, S. MILLER and LUCIANO, JJ., concur.