| People v Hutson |
| 2007 NY Slip Op 06717 [43 AD3d 959] |
| September 11, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Windel Hutson, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Kristina Sapaskis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Braun, J.),rendered June 28, 2005, convicting him of robbery in the second degree (two counts) and robberyin the third degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of robbery inthe third degree, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
As correctly conceded by the People, the two counts of robbery in the third degree wereinclusory concurrent counts of the two counts of robbery in the second degree (see CPL300.30 [4]; People v Curry, 302 AD2d 538 [2003]; People v Boyer, 295 AD2d529, 530 [2002]). A verdict of guilt upon the greater count is deemed a dismissal of every lessercount (see CPL 300.40 [3]). Thus, as the People correctly concede, the convictions ofrobbery in the third degree must be vacated and those counts of the indictment dismissed (seePeople v Lee, 39 NY2d 388, 390 [1976]).
The defendant's failure to raise an objection to the remarks made by the prosecutor onsummation renders his claim that he was denied his right to a fair trial unpreserved for appellatereview (see CPL 470.05 [2]; People v Garner, 27 AD3d 764 [2006]). In any event, thecomments alleged to be prejudicial were responsive to arguments and theories presented in thedefense summation (see People v Galloway, 54 NY2d 396 [1981]; People v Ashwal,39 NY2d 105 [1976]; People vWilliams, 38 AD3d 925 [2007]; People v Holguin, 284 AD2d 343 [2001];People v Russo, 201 AD2d 512, 513 [1994], affd 85 NY2d 872 [1995]; [*2]People v Evans, 192 AD2d 671 [1993]; cf. People v Pagan, 2 AD3d 879,880 [2003]), or harmless in light of the overwhelming evidence of the defendant's guilt (seePeople v Crimmins, 36 NY2d 230, 241 [1975]). Crane, J.P., Ritter, Dillon and Carni, JJ.,concur.