PEOPLE v. ROBINSON

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

The PEOPLE, etc., respondent, v. Butch Lee ROBINSON, appellant.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ. Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant. James M. Catterson, Jr., District Attorney, Riverhead, N.Y. (Kerri N. Lechtrecker of counsel), for respondent.

Appeal by the defendant from (1) a judgment of the County Court, Suffolk County (Vaughn, J.), rendered June 5, 1995, convicting him of grand larceny in the third degree and fraud pursuant to Social Services Law § 145 under Indictment No. 1505/94, upon a jury verdict, and (2) a judgment of the same court, also rendered June 5, 1995, convicting him of criminal sale of a controlled substance in the fifth degree under Indictment No. 1837/94, upon his plea of guilty, and imposing sentences.   The appeal under Indictment No. 1505/94 brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.

ORDERED that the judgment rendered under Indictment No. 1505/94 is modified, on the law, by reversing the conviction for fraud pursuant to Social Services Law § 145, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, that judgment is affirmed;  and it is further,

ORDERED that the judgment rendered under Indictment No. 1837/94 is affirmed.

Contrary to the defendant's contention, the findings of the hearing court are supported by the record, which demonstrates that probable cause existed for his arrest (see, People v. Brenfield, 188 A.D.2d 477, 590 N.Y.S.2d 536, citing People v. Ward, 175 A.D.2d 819, 573 N.Y.S.2d 299).   Therefore, the fraudulent Department of Social Services benefits card recovered from the defendant's person was properly admissible into evidence at trial (see, People v. Brenfield, supra;  People v. Brown, 173 A.D.2d 629, 570 N.Y.S.2d 214).

We agree with the defendant that his conviction pursuant to Social Services Law § 145 under count two of the indictment must be reversed because he was convicted of grand larceny in the third degree under the first count of the indictment for the same acts (see, Social Services Law § 145;  People v. Jarvis, 52 A.D.2d 1067, 384 N.Y.S.2d 329;  People v. Prim, 47 A.D.2d 409, 366 N.Y.S.2d 726, mod. on other grounds 40 N.Y.2d 946, 390 N.Y.S.2d 407, 358 N.E.2d 1033;  see also, People v. Simonton, 244 A.D.2d 1004, 665 N.Y.S.2d 247).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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