New York Appellate Court Reverses Trial Court Decision Regarding Inclusory Concurrent Counts

W was convicted of four counts of first degree robbery, two counts of robbery in the second degree four counts of grand larceny in the third degree. Mr. W appealed his conviction to the Supreme Court Appellate Division.

The appellate court held that Mr. W’s conviction on the second degree robbery and third degree grand larceny counts should be reversed. The majority argued that under New York law, when a verdict is comprised of inclusory concurrent counts, a guilty verdict on the highest count of the indictment is essentially a dismissal of the lesser included counts. The court held that the evidence demonstrated that Mr. W had committed the robbery with three other individuals who were armed at the time. Based on the facts of the case, the court reasoned that Mr. W could not have committed robbery in the first degree without also committing the other crimes included in the indictment. Under New York law, one of the elements of first degree robbery involves the threat or use of force and/or the display or use of a weapon. Had no weapon been present at the time the crime was committed, Mr. W would likely have been charged with second or third degree robbery or a lesser count of larceny.

Mr. W also argued that the prosecutor’s cross-examination of him at trial exceeded the boundaries of discretion. The court held that this argument was irrelevant since the evidence was overwhelmingly conclusive in supporting a conviction.

In a dissenting opinion, Judge Shapiro argued that robbery in the second degree was not necessarily a lesser included offense and that some but not all of the larceny and second degree robbery counts should be dismissed.

If you’ve been charged with multiple counts of robbery, attempted robbery, theft, larceny or burglary, you need to speak with an experienced New York Criminal Defense Attorney regarding your case. The law firm of Stephen Bilkis and Associates is available to help individuals facing criminal charges get the aggressive defense they deserve. Call us at 1-800-NY-NY-Law to speak with one of our criminal defense experts or visit us at one of our New York area offices to discuss your case in person. Don’t hesitate another day to get the experienced legal representation you need to protect your rights.