People v. Green , 400 N.Y.S.2d 643 ( 1977 )

Judgment, insofar as it convicts defendant of robbery in the second degree pursuant to subdivision 1 of section 160.10 of the Penal Law, unanimously reversed, on the law, that count of indictment dismissed, and otherwise judgment affirmed. Memorandum: Defendant was convicted of two counts of robbery in the first degree (Penal Law, § 160.15, subd 4) and two counts of robbery in the second degree (Penal Law, § 160.10, subds 1, 2, par [a]) arising out of the robbery of a Red Barn Restaurant by four individuals, one of whom had a pistol, and another, a shotgun. Defendant himself did not display a weapon. His convictions for robbery in- the first degree were necessarily based upon proof that one of the participants displayed what appeared to be a pistol, and another, a shotgun; Such proof would also necessarily constitute the proof required for a conviction of robbery in the second degree upon the ground that the defendant participated in a robbery while "aided by another person actually present” (Penal Law, § 160.10, subd'l). Therefore the count of robbery in the second degree was inclusory and concurrent with the count of first degree robbery. It should be reversed, and the count dismissed under CPL 300.40 (subd 3, par [b]). Other points raised by defendant are without merit and his convictions on the other counts should be affirmed. (Appeal from judgment of Erie Supreme Court—robbery, first degree, and another charge.) Present—Moule, J. P., Cardamone, Simons and Hancock, Jr., JJ.