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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. NATHANIEL LEARY, Appellant.

Under the facts presented at trial, defendant could not have committed the crime of first degree robbery pursuant to subdivision (1) of section 160.15 Penal of the Penal Law, as charged in count one of the indictment, without concomitantly satisfying the elements of first degree assault pursuant to subdivision (4) of section 120.10 Penal of the Penal Law, as charged in count eight. Thus, it is conceded by the District Attorney, and we agree, that the assault is a lesser included offense of the robbery (CPL 1.20; People v Moyer, 27 N.Y.2d 252), and that the assault conviction must therefore be vacated. (People v Chapman, 60 A.D.2d 584, 585.)

We have examined defendant's remaining arguments on appeal and find them to be without merit.

Concur — Ross, J.P., Asch, Kassal and Wallach, JJ.

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PEOPLE v. LEARY
(Jan 26, 1989)