PEOPLE v. MILLER

ORDERED that the judgment is modified, on the law, by vacating the convictions for attempted robbery in the third degree and criminal possession of a weapon in the fourth degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant' s guilt of the crimes of attempted robbery in the first and second degrees, criminal possession of a weapon in the second and third degrees, and attempted grand larceny in the fourth degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).

As the People correctly concede, the crime of attempted robbery in the third degree is a lesser-included offense of the crimes of attempted robbery in the first and second degrees ( see, Matter of Tonia B., 239 A.D.2d 572, 573; People v. Gethers, 212 A.D.2d 544), and criminal possession of a weapon in the fourth degree is a lesser-included offense of criminal possession of a weapon in the third degree ( see, People v. Menchetti, 76 N.Y.2d 473, 478; People v. Rivera, 181 A.D.2d 925; People v. Perez, 128 A.D.2d 410, 411). Accordingly, upon his conviction of the crimes of attempted robbery in the first and second degrees and criminal possession of a weapon in the third degree, the lesser-included counts should have been dismissed ( see, CPL 300.40[b]).

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

The defendant's remaining contention is unpreserved for appellate review ( see, CPL 470.05; People v. Young, 249 A.D.2d 576, 578; People v. Smith, 240 A.D.2d 600, 601; People v. Bosket, 216 A.D.2d 791, 793; People v. Herbert, 182 A.D.2d 639, 640).

BRACKEN, J.P., S. MILLER, THOMPSON, and FRIEDMANN, JJ., concur.