People v. Smith

Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant’s conviction on two counts *305of robbery in the second degree must be reversed (Penal Law § 160.10 [2] [a]) and the sentence imposed thereon is vacated because they are lesser included crimes of robbery in the first degree (Penal Law § 160.15 [1]) of which defendant was convicted (see, People v Jones, 59 AD2d 538).

The trial court properly denied defendant’s motion to sever the perjury charge from the robbery and assault charges even though they were different criminal transactions, since proof of the robbery and assault charges was material and admissible as evidence-in-chief under the perjury charge (CPL 200.20 [2] [b]; see, People v Johnson, 64 AD2d 140, affd 48 NY2d 925). We have examined defendant’s remaining arguments and find them meritless. (Appeal from judgment of Onondaga County Court, Hurlbutt, J.—robbery, first degree.) Present—Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ.