
    The People of the State of New York, Respondent, v Jesus Perez, Appellant.
    Argued May 31, 1978;
    decided July 11, 1978
    
      POINTS OF COUNSEL
    
      Alan S. Axelrod and William E. Hellerstein for appellant.
    I. The People, as a matter of law, failed to prove appellant guilty beyond a reasonable doubt where the sole inculpatory evidence at trial was the testimony of complainant, who, two weeks after the crime, stated that he would be unable to identify the robbers if shown photographs, and who, one week later, failed to identify appellant at a Criminal Court showup. (People v Reed, 40 NY2d 204; People v Santos, 38 NY2d 173; People v Pegnataro, 263 NY 229; People v Ledwon, 153 NY 10; People v De Tore, 34 NY2d 199.) II. The court should have ordered further psychiatric examinations and a hearing on appellant’s competence to stand trial when it was informed by counsel that he believed appellant incapable of comprehending the proceedings and that appellant had done little to aid in preparing his defense, and when it received a presentence psychiatric report which described appellant as schizophrenic and indicated that he had previously been in a mental hospital. (Drope v Missouri, 420 US 162; People v Hudson, 19 NY2d 137; People v Gonzalez, 20 NY2d 289, 390 US 971; Pate v 
      
      Robinson, 383 US 375; People v Armlin, 37 NY2d 167; People v Bangert, 22 NY2d 799; People v Peterson, 40 NY2d 1014.) III. The count of possession of a weapon as a misdemeanor should have been dismissed as an inclusory concurrent count of robbery in the first degree. (People v Acevedo, 40 NY2d 701; People v Lee, 39 NY2d 388; People v Grier, 37 NY2d 847; People v Alston, 52 AD2d 817.)
    
      Mario Merola, District Attorney (Philip F. Menna and Billie Manning of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v Santos, 38 NY2d 173; People v Ledwon, 153 NY 10; People v Owens, 148 NY 648; People v Seppi, 221 NY 62; People v Joyiens, 39 NY2d 197; People v Harrington, 29 NY2d 498; People v Ballott, 20 NY2d 600; People v De Tore, 34 NY2d 199; Wedra v New York, 419 US 1025; People v Cerullo, 18 NY2d 839; Moccio v New York, 387 US 946; People v McCullers, 33 NY2d 806.) II. The trial court’s discretionary determination to order a psychiatric examination of appellant without a subsequent competency hearing did not constitute error, as a matter of law. (People v Robinson, 36 NY2d 224; People v Smyth, 3 NY2d 184; People v Salladeen, 50 AD2d 765, 42 NY2d 914; United States ex rel. Roth v Zelker, 455 F2d 1105, 408 US 927; United States v Wolfe, 232 F Supp 85; People v Sullivan, 48 AD2d 398, 39 NY2d 903; People v Miller, 84 Misc 2d 310; People v Gonzalez, 20 NY2d 289, 390 US 971.) III. The conviction for the crime of possession of a weapon as a misdemeanor was proper. (People v Johnson, 39 NY2d 364; People v Flores, 42 AD2d 431; People v Colon, 46 AD2d 624; People v Ridout, 46 AD2d 643.)
   OPINION OF THE COURT

Jasen, J.

After returning home from a movie, at approximately 1:30 a.m., George Glass was approached in front of his apartment building at 1340 Morris Avenue in The Bronx by appellant, Jesus Perez, and a second individual, one Robert Ferguson. Upon approaching Glass, appellant inquired as to whether a certain person lived in the apartment building. Before Glass could respond however, appellant, who while approaching Glass was handed a knife by Ferguson, thrust Glass against" a parked car, placed the knife against his spine, and demanded that he surrender his money. Notwithstanding Glass’ frightened attempt to co-operate by indicating his possession of a few dollars and his willingness to turn over that sum to his assailants, appellant continued to bear his weight against the knife while Ferguson rifled Glass’ pockets. Having discovered no greater bounty, as Glass had contended, appellant nonetheless plunged the knife into his victim’s back. Recoiling from the blow, Glass staggered into the street only to be seized again by his attackers and stabbed a second time by appellant.

Having been indicted in a multicount indictment, appellant, after a jury trial, was convicted of robbery in the first degree (Penal Law, § 160.15), two counts of assault in the second degree (Penal Law, § 120.05), and possession of a weapon as a misdemeanor (Penal Law, § 265.05, subd 9). The Appellate Division affirmed appellant’s convictions, without opinion.

Appellant raises a number of issues on this appeal, each of which we find, upon review, to be without merit. We, nonetheless, take this opportunity to clarify the scope of GPL 300.40 (subd 3, par [b]), which provides that a verdict of guilty upon the greatest count of an indictment submitted to the jury constitutes a dismissal of every lesser inclusory concurrent count submitted.

With regard to this issue, appellant contends that the third count of the indictment charging him with possession of a "knife with the intent to use the same unlawfully against another” is a lesser included offense of the first count of the indictment charging him with robbery in the first degree. The latter count charged specifically that in the course of the commission of the robbery, appellant was "armed with and used and threatened the immediate use of a dangerous instrument, to wit, a knife.” The basis of appellant’s contention is two-pronged: First, that he could not have committed the robbery armed with a knife and used such weapon without necessarily concomitantly possessing the knife with the intent to use it unlawfully against a person; and, second, that there exists no evidence that he possessed the knife prior to the commencement of the robbery. Thus, concludes appellant, the jury’s verdict convicting him of robbery in the first degree should have automatically resulted in the dismissal of the weapons possession count. We cannot agree.

Standing as the fountain of the doctrine of lesser included offense is GPL 1.20 (subd 37), which provides that "[wjhen it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of a lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ” Interpreting this statutory definition, the Appellate Division has, in a number of recent cases similar to the instant appeal, held that a weapons possession charge is dismissed upon the return of a verdict of guilty on a greater crime. (See, e.g., People v Buchanan, 57 AD2d 781 [possession of a weapon as inclusory concurrent count of murder and robbery]; People v Williams, 57 AD2d 850 [possession of a weapon as inclusory concurrent count of attempted murder]; People v Davis, 56 AD2d 892 [possession of weapon as inclusory concurrent count of attempted assault]; People v Lucas, 56 AD2d 780 [possession of weapon as inclusory concurrent count of robbery]; People v Solomon, 56 AD2d 751 [possession of weapon as inclusory concurrent count of robbery].) The apparent rationale for the dismissal of an indictment count charging possession of a weapon upon the return of a verdict of guilty upon a count of the indictment charging a greater crime is the absence of evidence indicating the defendant’s possession of the weapon with intent to use it unlawfully independent of the commission of the greater crime, be it robbery, assault, murder or some other crime.

We believe, however, that it is not necessary to prove a defendant’s possession of a weapon with intent to use it against a person unlawfully by evidence independent of the defendant’s conduct during the commission of a greater crime. On the contrary, where a defendant uses a weapon unlawfully to commit a crime of violence, such as robbery, that conduct in itself provides the basis for an indictment charging the defendant with both robbery and possession of a weapon with intent to use it against a person unlawfully.

Behind the doctrine of lesser included offense stands the basic principle that a defendant should not be convicted and punished more than once for conduct which, although constituting only one prohibited act, may, because of statutory definition, be theorized as constituting separate criminal acts. For example, in People v Stanfield (36 NY2d 467), we considered the question whether criminally negligent homicide is a lesser included offense of manslaughter in the second degree. In holding that it is, we noted that the distinction between the crimes of manslaughter in the second degree and criminally negligent homicide is nothing more than the mental state of the actor at the time of the commission of the crime. (See People v Haney, 30 NY2d 328, 333.) We stressed that, exclusive of the mental state, the result and underlying conduct requisite in both manslaughter in the second degree and criminally negligent homicide are identical. (36 NY2d, at p 470, supra.) For this reason, we rejected the argument advanced by the People that, because of the different mental states required by the statutory definitions of these crimes, they are mutually exclusive and, hence, that it would be possible to commit manslaughter in the second degree without concomitantly committing criminally negligent homicide. (Id., P 471.)

In a somewhat similar vein, we held in People v Henderson (41 NY2d 233) that trespass in the third degree qualifies as a lesser included offense of burglary in the third degree. There, we stated: "Indeed, '[bjurglary, as defined in the Revised Penal Law, is, in essence, nothing more than a form of criminal trespass with two aggravating factors: (1) the premises invaded constitute a building, and (2) the intruder enters or remains with intent to commit a crime thereon’ ”. (Id., at p 235, quoting Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.20, p 35.)

To be distinguished is the present case, in which the crimes of robbery and possession of a weapon constitute separately cognizable and statutorily proscribed wrongs. These crimes differ not merely in the requisite mental state of the actor, but, more importantly, in their underlying conduct and result. Certainly, no one would consider robbery as nothing more than possession of a weapon with certain aggravating factors, as one would burglary and trespass. (See People v Henderson, supra.) Because of the serious danger to the public posed by individuals who possess weapons, we believe that, as a matter of policy, the Legislature could not have intended that a weapons possession charge, such as the charge involved in this case, merge with the greater crime of robbery, notwithstanding the absence of evidence of the defendant’s possession of the weapon independent of his conduct during the commission of the robbery.

In so holding, we call attention to the fact that to convict appellant of both the crimes of robbery in the first degree and possession of a weapon as a misdemeanor will not result in the imposition of a sentence of imprisonment greater than that which would have been imposable had he been convicted only of robbery in the first degree. Where a defendant is convicted of two offenses as a result of "an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences [of imprisonment imposed] must run concurrently.” (Penal Law, § 70.25, subd 2.) Thus, while at first blush appellant’s conviction of both robbery in the first degree and possession of a weapon as a misdemeanor may appear harsh, its effect is mitigated by a statutory proscription against imposition of an additional sentence of imprisonment for the latter crime.

Accordingly, the order of the Appellate Division should be affirmed.

Gabrielli, J.

(dissenting in part). Although I agree that defendant’s other arguments are completely devoid of any merit, I am constrained by law and logic to conclude that under the facts of this case the crime of possession of a weapon as a misdemeanor (then Penal Law, § 265.05, subd 9, now Penal Law, § 265.01, subd [2]) is a lesser inclusory concurrent count with respect to the crime of robbery in the first degree (Penal Law, § 160.15, subd 3). Thus, when defendant was found to be guilty of robbery in the first degree, the court should have dismissed the possession charge pursuant to CPL 300.40 (subd 3, par [b]). Accordingly, I would modify the order appealed from by dismissing the conviction of defendant for possession of a weapon as a misdemeanor.

This is really a very simple case. Defendant Perez and one Robert Ferguson robbed and assaulted one George Glass early one morning on a Bronx street. In the course of that robbery, Ferguson handed defendant a knife and defendant stabbed Glass with that knife. Defendant was tried upon an indictment charging him with the crimes of robbery in the first degree, robbery in the second degree, grand larceny in the third degree, assault in the first degree, assault in the second degree, and possession of a weapon as a misdemeanor. Following a jury trial, he was convicted of robbery in the first degree, two counts of assault in the second degree, and possession of a weapon as a misdemeanor. The Appellate Division affirmed defendant’s convictions, and he now appeals to this court on several grounds, only one of which has any validity.

CPL 300.40 (subd 3, par [b]) provides, inter alia, that a verdict of guilty with respect to the greater of two or more inclusory concurrent counts is to be "deemed a dismissal of every lesser count submitted”. Defendant contends, and correctly so, that the facts of this case are such that the possession of a weapon charge was a lesser inclusory concurrent count with respect to the charge of robbery in the first degree, and thus a verdict of guilty as to the robbery charge mandated dismissal of the possession charge.

To determine the meaning and applicability of the term "lesser inclusory concurrent count”, we must first turn to CPL 300.30 (subd 4), which provides that "[cjoncurrent counts are 'inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater.” It is evident that this definition provides two discrete criteria, each of which must be met for a particular count to be a lesser inclusory concurrent count with respect to another: the two counts must be concurrent, and the one must be a lesser included offense with respect to the other. To determine whether the two elements of the definition of a lesser inclusory concurrent count are present in a given case, we must examine the applicable statutes, which are uncomplicated and clearly mandate the correct result in this case.

CPL 300.30 (subd 3) provides that counts are concurrent if "concurrent sentences only may be imposed in case of conviction thereon.” To learn when it is that only concurrent sentences may be imposed, one must turn next to subdivision 2 of section 70.25 of the Penal Law, which provides that "[wjhen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences must run concurrently.” Before applying this definition to the facts of the present case, it is appropriate to consider the remaining element of the definition of a lesser inclusory concurrent count, namely, that it be included within the greater offense. The phrase "lesser included offense” is defined in CPL 1.20 (subd 37), which reads, in pertinent part, as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ”

Defendant was convicted of robbery in the first degree, pursuant to subdivision 3 of section 160.15 of the Penal Law, which defines that crime as follows: "A person is guilty of robbery in the fir^t degree when he forcibly steals property and when * * * he * * * [u]ses or threatens the immediate use of a dangerous instrument”. As noted, he was also convicted of possession of a dangerous weapon as a misdemeanor, which was then defined in subdivision 9 of section 265.05 of the Penal Law (now Penal Law, § 265.01, subd [2]), which provided that ”[a]ny person who has in his possession any * * * knife * * * with intent to use the same unlawfully against another is guilty of a class A misdemeanor”.

It is of course readily apparent that this defendant could not possibly have committed this robbery with the use of a dangerous instrument, in this case the knife, without at the same time possessing that knife with intent to use it against the victim of the robbery. Thus, the possession of a weapon charge falls squarely within the definition of a lesser inclusory concurrent count with respect to the charge of robbery in the first degree. Any sentences imposed for the two crimes under these facts would have to be concurrent, since the act of possession with intent to use is both the act which constitutes the offense of possession and also an implicitly material element of robbery in the first degree as defined in subdivision 3 of section 160.15 of the Penal Law (see Penal Law, § 70.25, subd 2). Thus, the two counts are concurrent pursuant to CPL 300.30 (subd 3). Finally, the crime of possession of a weapon as a misdemeanor, in this case, is a lesser included offense with respect to the crime of robbery in the first degree since it is obviously a lesser offense and since this defendant could not have committed the robbery without concomitantly committing by the same conduct the crime of possession of a weapon (see CPL 1.20, subd 37).

As it is abundantly clear that under the facts of this case, which are the applicable criteria in determining whether a charge is a lesser inclusory concurrent count (see, e.g., People v Hayes, 35 NY2d 907, affg on opn at 43 AD2d 99; People v Grier, 37 NY2d 847; People v Lee, 39 NY2d 388), defendant could not have committed the crime of robbery in the first degree as defined in subdivision 3 of section 160.15 of the Penal Law without at the same time committing the crime of possession of a weapon as a misdemeanor, his conviction upon the robbery count requires a dismissal of the possession charge (see CPL 300.40, subd 3, par [b]). This is the conclusion which has been reached by the vast majority of courts which have dealt with similar situations (see, e.g., People v Flowers, 56 AD2d 660; People v Solomon, 56 AD2d 751; People v Lucas, 56 AD2d 780), and I see no justification for avoiding this statutorily mandated result.

Accordingly, I vote to modify the order appealed from by dismissing the conviction of defendant for the crime of possession of a weapon as a misdemeanor.

Chief Judge Breitel and Judges Jones, Fuchsberg and Cooke concur with Judge Jasen; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Judge Wachtler concurs.

Order affirmed. 
      
      (Now Penal Law, § 265.01, subd [2].)
     