| People v Maldonado |
| 2007 NY Slip Op 10179 [46 AD3d 842] |
| December 18, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Landaverde Maldonado, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeannetteLifschitz, and Jennifer Etkin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.),rendered March 3, 2006, convicting her of robbery in the first degree, robbery in the seconddegree (two counts), and assault in the second degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of assault inthe second degree and the sentence imposed thereon, and dismissing that count of the indictment;as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), the evidence adduced at trial was legally sufficient toestablish the defendant's guilt of robbery in the first degree and robbery in the second degree (twocounts) beyond a reasonable doubt. Moreover, upon the exercise of our factual review power(see CPL 470.15 [5]), we are satisfied that the verdict of guilt with respect to these countswas not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]).
However, the fourth count of the indictment, charging the defendant with assault in thesecond degree (see Penal Law § 120.05 [6]), is an inclusory concurrent count ofrobbery in the second degree as charged in the third count of the indictment (see PenalLaw § 160.10 [2] [a]; People v VanDuyne, 267 AD2d 408, 409 [1999]; Peoplev Ross, 246 AD2d 561, 562 [1998]; People v Male, 227 AD2d 502, 503 [1996];People v Tucker, 221 AD2d 670 [1995]; People v Rogers, 139 AD2d 782, 783[1988]). Therefore, that [*2]count should have been dismissed(see People v VanDuyne, 267 AD2d 408 [1999]; People v Ross, 246 AD2d 561[1998]; People v Male, 227 AD2d 502 [1996]; People v Tucker, 221 AD2d 670[1995]; People v Rogers, 139 AD2d 782 [1988]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).
The defendant's remaining contention is without merit. Miller, J.P., Spolzino, Ritter andDickerson, JJ., concur.