
    The People of the State of New York, Respondent, v Elmore Cunningham, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 7, 1973, convicting him of robbery in the first degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by deleting therefrom the conviction for grand larceny in the third degree and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Where a verdict is comprised of inclusory counts, a verdict of guilty on the highest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b]). Under the facts of this case, defendant could not have committed robbery in the first degree without concomitantly committing grand larceny in the third degree. Accordingly, the conviction of grand larceny in the third degree must be dismissed (see People v Grier, 37 NY2d 847; People v Johnson, 39 NY2d 364). The other points raised by defendant on this appeal have, on consideration, been found to be without merit. Latham, Acting P. J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.  