PEOPLE v. WILLIAMS (2002)

Judgment, Supreme Court, New York County (Daniel FitzGerald, J. at first jury trial;  Edward McLaughlin, J. at second jury trial and sentence), entered June 14, 2001, convicting defendant of robbery in the second degree and petit larceny and sentencing him, as a second violent felony offender, to concurrent terms of 9 1/212 years and one year, unanimously affirmed.   Order, same court (Edward McLaughlin, J.), entered on or about February 14, 2002, which denied defendant's motion to vacate the judgment, unanimously affirmed.

Contrary to defendant's contentions, CPL 300.50(4) and 300.40(3)(b) do not require that his petit larceny conviction at his first trial be deemed an acquittal of the robbery charge, upon which the first jury was unable to reach a unanimous verdict.   Accordingly, his retrial on the robbery count did not violate principles of double jeopardy.   Notably, the jury at the first trial was instructed to consider petit larceny only as a lesser included offense of grand larceny in the fourth degree, and not as a lesser included offense of robbery in the second degree.   Indeed, the jury was provided with a verdict sheet that emphasized this distinction.   Moreover, the robbery charge and the grand larceny charges were not submitted in the alternative.   Accordingly, People v. Fuller, 96 N.Y.2d 881, 730 N.Y.S.2d 773, 756 N.E.2d 61 is distinguishable.

We perceive no basis for a reduction of sentence.