People v. Cortez

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 1, 1977, convicting him of robbery in the first degree and robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of robbery in the second degree under the second count of the indictment, dismissing that count and vacating the sentence imposed thereon. As so modified, judgment affirmed. The jury was instructed by the trial court to consider the first two counts of the indictment in the alternative. The jury failed to adhere to the court’s instructions and rendered a verdict convicting the defendant of both counts. This failure requires a reversal of the defendant’s conviction on the second count of the indictment and a dismissal of that count (see CPL 310.50, subd 3). We have considered the defendant’s remaining contentions and find them to be without merit. Titone, J. P., Lazer, Gulotta and Margett, JJ., concur.