| People v George |
| 2008 NY Slip Op 01965 [49 AD3d 554] |
| March 4, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LewisGeorge, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Keith Dolan, andMarie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.),rendered April 6, 2006, convicting him of robbery in the first degree, robbery in the seconddegree (two counts), robbery in the third degree (two counts), and grand larceny in the fourthdegree (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 and 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 robbery in the first degree count and one count of robbery inthe second degree (see CPL 300.30 [4]; People v Hutson, 43 AD3d 959 [2007], lv denied 9 NY3d1006 [2007]; People v Curry, 302 AD2d 538 [2003]; People v Boyer, 295 AD2d529 [2002]). A verdict of guilt upon the greater count is deemed a dismissal of every lesser count(see CPL 300.40 [3]). Therefore, the convictions of robbery in the third degree must bevacated and those counts of the indictment dismissed (see People v Lee, 39 NY2d 388[1976]; People v Hutson, 43 AD3d959 [2007], lv denied 9 NY3d 1006 [2007]).
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]).[*2]
However, the defendant is correct that the court erred instriking his testimony that the car which was implicated in three of the robberies did not belongto him and had been borrowed from the owner, who also used to lend it to four or five otherpeople. Furthermore, contrary to the People's contention, this issue was preserved for appellatereview. Nevertheless, the error was harmless as there was overwhelming evidence of thedefendant's guilt, and no significant probability that the error contributed to his convictions(see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Rush 44 AD3d 799 [2007], lv denied 9 NY3d1009 [2007]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Spolzino, J.P., Santucci, Angiolillo and Balkin, JJ., concur.