PEOPLE v. DUNBAR

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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Naaron K. DUNBAR, Defendant-Appellant.

Decided: September 29, 2000

PRESENT:  PIGOTT, JR., P.J., HAYES, HURLBUTT, SCUDDER and LAWTON, JJ. John A. Cirando, Syracuse, for defendant-appellant. Mark Moody, New York City, for plaintiff-respondent.

 Defendant contends that the accomplice testimony was inadequately corroborated.   We disagree.   Defendant's participation in the two robberies was independently corroborated (see, People v. Tillotson, 63 N.Y.2d 731, 733, 480 N.Y.S.2d 199, 469 N.E.2d 520).   The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Defendant's contention that the verdict is repugnant has not been preserved for our review (see, People v. Alfaro, 66 N.Y.2d 985, 987, 499 N.Y.S.2d 378, 489 N.E.2d 1280) and, in any event, lacks merit (see generally, People v. Trappier, 87 N.Y.2d 55, 58, 637 N.Y.S.2d 352, 660 N.E.2d 1131).   Defendant's contention that criminal possession of a weapon in the fourth degree is an inclusory concurrent count of robbery in the second degree also has not been preserved for our review (see, CPL 470.05[2] ).   Were we to exercise our power to review that contention as a matter of discretion in the interest of justice, we would conclude that they are not inclusory concurrent counts (see, People v. Mason, 128 A.D.2d 812, 813, 513 N.Y.S.2d 515, lv. denied 70 N.Y.2d 651, 518 N.Y.S.2d 1044, 512 N.E.2d 570).   County Court properly denied defendant's motion to set aside the verdict pursuant to CPL 330.30 on the ground of newly discovered evidence (see, People v. Pugh, 236 A.D.2d 810, 653 N.Y.S.2d 994, lv. denied 89 N.Y.2d 1099, 660 N.Y.S.2d 393, 682 N.E.2d 994).

 Defendant further contends that, in light of his conviction of two counts of robbery in the second degree (Penal Law § 160.10[2] ), his conviction of the noninclusory concurrent counts of criminal use of a firearm in the second degree (Penal Law § 265.08[2] ) should be reversed and the sentences imposed thereon vacated.   We agree (see, People v. Brown, 67 N.Y.2d 555, 560-561, 505 N.Y.S.2d 574, 496 N.E.2d 663, cert. denied 479 U.S. 1093, 107 S.Ct. 1307, 94 L.Ed.2d 161).   Although the error was not preserved for our review, we modify the judgment as a matter of discretion in the interest of justice by reversing defendant's conviction of criminal use of a firearm in the second degree under the second and fifth counts of the indictment, vacating the sentences imposed thereon and dismissing those counts of the indictment.

We have reviewed defendant's remaining contentions and conclude that they lack merit.

Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed.

MEMORANDUM: