PEOPLE v. HUTSON (2007)

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 robbery in 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 in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment;  as so modified, the judgment is affirmed.

 As correctly conceded by the People, the two counts of robbery in the third degree were inclusory concurrent counts of the two counts of robbery in the second degree (see CPL 300.30[4];  People v. Curry, 302 A.D.2d 538, 755 N.Y.S.2d 266;  People v. Boyer, 295 A.D.2d 529, 530, 744 N.Y.S.2d 686).   A verdict of guilt upon the greater count is deemed a dismissal of every lesser count (see CPL 300.40[3] ).   Thus, as the People correctly concede, the convictions of robbery in the third degree must be vacated and those counts of the indictment dismissed (see People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579).

 The defendant's failure to raise an objection to the remarks made by the prosecutor on summation renders his claim that he was denied his right to a fair trial unpreserved for appellate review (see CPL 470.05[2];  People v. Garner, 27 A.D.3d 764, 815 N.Y.S.2d 614).   In any event, the comments alleged to be prejudicial were responsive to arguments and theories presented in the defense summation (see People v. Galloway, 54 N.Y.2d 396, 446 N.Y.S.2d 9, 430 N.E.2d 885;  People v. Ashwal, 39 N.Y.2d 105, 383 N.Y.S.2d 204, 347 N.E.2d 564;  People v. Williams, 38 A.D.3d 925, 833 N.Y.S.2d 160;  People v. Holguin, 284 A.D.2d 343, 725 N.Y.S.2d 572;  People v. Russo, 201 A.D.2d 512, 513, 607 N.Y.S.2d 413, affd. 85 N.Y.2d 872, 626 N.Y.S.2d 51, 649 N.E.2d 1195;  People v. Evans, 192 A.D.2d 671, 597 N.Y.S.2d 90;  cf. People v. Pagan, 2 A.D.3d 879, 880, 769 N.Y.S.2d 741), or harmless in light of the overwhelming evidence of the defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 241, 367 N.Y.S.2d 213, 326 N.E.2d 787).