PEOPLE v. MALDONADO (2007)

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 second degree (two counts), and assault in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the 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 v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), the evidence adduced at trial was legally sufficient to establish the defendant's guilt of robbery in the first degree and robbery in the second degree (two counts) 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 counts was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 644-645, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, the fourth count of the indictment, charging the defendant with assault in the second degree (see Penal Law § 120.05[6] ), is an inclusory concurrent count of robbery in the second degree as charged in the third count of the indictment (see Penal Law § 160.10[2][a];  People v. VanDuyne, 267 A.D.2d 408, 409, 701 N.Y.S.2d 99;  People v. Ross, 246 A.D.2d 561, 562, 667 N.Y.S.2d 434;  People v. Male, 227 A.D.2d 502, 503, 643 N.Y.S.2d 370;  People v. Tucker, 221 A.D.2d 670, 634 N.Y.S.2d 218;  People v. Rogers, 139 A.D.2d 782, 783, 527 N.Y.S.2d 528).   Therefore, that count should have been dismissed (see People v. VanDuyne, 267 A.D.2d 408, 701 N.Y.S.2d 99;  People v. Ross, 246 A.D.2d 561, 667 N.Y.S.2d 434;  People v. Male, 227 A.D.2d 502, 643 N.Y.S.2d 370;  People v. Tucker, 221 A.D.2d 670, 634 N.Y.S.2d 218;  People v. Rogers, 139 A.D.2d 782, 527 N.Y.S.2d 528).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.