People v. Westmoreland

Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: The People concede that the judgment must be modified by dismissing the assault count and vacating the sentence imposed thereon. It is an inclusory concurrent count of second degree robbery (see, CPL 300.40 [3] [b]). We have examined the other issues raised by defendant’s appellate counsel and by defendant in his pro se brief and find none with merit. (Appeal from judgment of Monroe County Court, Wisner, J. — kidnapping, first degree.) Present — Boomer, J. P., Green, Pine, Lawton and Davis, JJ.