
    The People of the State of New York, Respondent, v Scott McLeod, Appellant.
   Judgment, Supreme Court, Bronx

County (Frank Torres, J.), rendered November 19, 1990, convicting defendant, after jury trial, of robbery in the first degree, two counts of robbery in the second degree, two counts of assault in the second degree and criminal possession of a weapon in the fourth degree, and sentencing him to concurrent terms of imprisonment of 4 to 12 years, 2⅓ to 7 years and 6 months, for the weapon conviction, unanimously modified on the law, to vacate the assault conviction under Penal Law § 120.05 (6), and dismiss that count of the indictment and otherwise affirmed.

We are satisfied that the unpreserved error in permitting the arresting officer to view defendant’s arrest photo was inconsequential, since defendant was arrested after the complainant spontaneously recognized him on a street corner some five days after the robbery. Nor was it an abuse of discretion to deny defendant youthful offender treatment (see, People v Williams, 78 AD2d 642). However as the People concede, the judgment must be modified to vacate the assault conviction under Penal Law § 120.05 (6), the fourth count, as a lesser included offense of robbery in the second degree (People v Boyd, 102 AD2d 774). Concur — Carro, J. P., Kupferman, Asch and Smith, JJ.  