
    The People of the State of New York, Respondent, v Nicholas Zachary, Also Known as Nichols Zachary, and Nicholas Zachory, Appellant.
   Appeal by defendant from a judgment of the County Court, Dutchess County, rendered February 8, 1973, upon resentence, 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 reversing the conviction of grand larceny in the third degree and the sentence imposed thereon, and the said count of the indictment 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. Hopkins, Acting P. J., Martuscello, Latham, Rabin and Titone, JJ., concur.  