
    The People of the State of New York, Respondent, v. Marcus Rivera, Appellant.
   Judgment, Supreme Court, New York County, rendered July 26, 1974, convicting defendant, after a non jury trial of the crimes of robbery in the first degree, grand larceny in the third degree, and possession of a dangerous instrument and appliance, and sentencing defendant, as a second felony offender, to a term of imprisonment of from four and one-half years to nine years on the robbery conviction, and concurrent terms of from one and one-half to three years on the grand larceny and one year for the possession of a dangerous instrument charges, unanimously modified, on the law, to the extent of reversing the conviction for grand larceny in the third degree, vacating the concurrent sentence imposed thereon and dismissing the grand larceny count of the indictment; and, as so modified, the judgment is otherwise affirmed. Robbery in the first degree and grand larceny in the third degree were “inclusory concurrent counts” (CPL 300.30, subd. 4) and a verdict of guilty on the greater of two inclusory counts of an indictment is deemed a dismissal of any lesser count submitted. (CPL 300.40, subd. 3, par. [b].) Hence, the verdict of guilty on the grand larceny in the third degree count, must be dismissed, although not deemed an acquittal thereon. (See People v. Pyles, 44 A D 2d 784; People v. Bidout, 46 A D 2d 643; People v. Dr os, 46 A D 2d 751.) We have examined the other points urged by appellant and find them without merit. Concur — Markewich, J. P., Lupiano, Tilzer and Lane, JJ. ¡  