PEOPLE v. McTYERE

Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant, together with others was indicted and charged with two counts of robbery in the second degree (Penal Law, § 20.00, 160.10 Penal, subd 2, pars [a], [b]) and one count of grand larceny in the third degree (Penal Law, § 20.00, 155.30 Penal, subd 1). The charges arise out of a holdup of a drug store in the City of Niagara Falls during which an employee of the store was struck on the head with a "gun" that later was identified to be a cigarette lighter. Approximately $100 was taken from the store's cash register. Following a jury trial, defendant was convicted of robbery in the second degree (Penal Law, § 20.00, 160.10 Penal, subd 2) and petit larceny (Penal Law, § 155.25). On the facts of this case, defendant's conviction of the crime of petit larceny constitutes a lesser included offense to robbery in the second degree (see People v Acevedo, 40 N.Y.2d 701, 706-707; People v Whipset, 80 A.D.2d 986; People v White, 57 A.D.2d 1076). Although this issue was not raised on appeal, where the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b]; People v Grier, 37 N.Y.2d 847, 848). Accordingly, the judgment convicting defendant of petit larceny must be reversed and the sentence vacated.