
    The People of the State of New York, Respondent, v James Swindell, Appellant.
   — Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 21, 1972, convicting him of robbery in the first degree, grand larceny in the third degree, assault in the second degree and attempted assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of grand larceny in the third degree and the sentence thereon and the count is dismissed. As so modified, judgment affirmed. Under the facts of this case, defendant could not have committed robbery in the first degree without having also committed grand larceny in the third degree. Therefore, the guilty verdict on the count for robbery in the first degree required dismissal of the grand larceny count (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847; People v Sistrunk, 46 AD2d 914; People v Pyles, 44 AD2d 784). We have reviewed the other arguments raised by defendant and find them to be without merit. Latham, Acting P. J., Cohalan, Brennan, Munder and Shapiro, JJ., concur.  