People v. Lambertis , 410 N.Y.S.2d 303 ( 1978 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 28, 1977, convicting him of burglary in the third degree, petit larceny and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of criminal possession of stolen property in the third degree, and the sentence imposed thereon, and the count upon which said conviction is based is dismissed. As so modified, judgment affirmed. The indictment charged appellant with two counts each of burglary in the third degree and grand larceny in the third degree, in relation to crimes committed at two separate premises. The grand larceny charges were reduced, at the close of the evidence, to petit larceny. Appellant was convicted of burglary in the third degree and petit larceny with respect to one of the premises. As to the other, appellant was convicted of criminal possession of stolen property in the third degree, which the trial court charged was a lesser included offense of petit larceny. However, it is conceded by the People that since both of those crimes are statutorily designated as class A misdemeanors (Penal Law, §§ 155.25, 165.40) neither may constitute a "lesser included offense” of the other (see CPL 1.20, subd 37; People v Weathersby, 44 NY2d 686). Accordingly, the charge was improper and appellant’s conviction of criminal possession of stolen property in the third degree must be reversed. We have considered the other contentions of appellant and find them to be without merit. Damiani, J. P., Rabin, Gulotta and O’Connor, JJ., concur.