People v. Milburn, 40 N.Y.2d 848 (1976)

A conviction on the greatest count of inclusory concurrent counts is deemed a dismissal of every lesser count.

Summary

Milburn was convicted of robbery and grand larceny. The Court of Appeals addressed two issues: the admissibility of hearsay statements for identification and whether the conviction for both robbery and grand larceny could stand, given that the latter was an inclusory concurrent count of the former. While the court found any error in admitting the hearsay evidence harmless due to strong eyewitness testimony, it agreed that the grand larceny conviction could not stand because the defendant could not have committed the robbery without also committing the grand larceny. The court modified the Appellate Division’s order by dismissing the grand larceny conviction and affirming the rest.

Facts

Two eyewitnesses positively identified the defendant, Milburn, as the perpetrator of a robbery. One witness recognized Milburn from the neighborhood, having seen him on several prior occasions. She also observed him during and after the crime. The second witness saw Milburn robbing and beating the victim and later notified the police of his whereabouts.

Procedural History

The defendant was convicted of both robbery and grand larceny. The Appellate Division affirmed the conviction. The Court of Appeals then reviewed the case, considering the admissibility of hearsay evidence and the validity of convictions for both robbery and grand larceny.

Issue(s)

1. Whether the admission of hearsay statements for identification constituted reversible error.
2. Whether the defendant’s conviction for both robbery and grand larceny was proper where the grand larceny charge was an inclusory concurrent count of the robbery charge.

Holding

1. No, because any error in admitting hearsay evidence was harmless in light of the positive and unwavering identification testimony of the eyewitnesses.
2. No, because a defendant cannot be convicted of both a greater offense and a lesser included offense arising from the same conduct; conviction on the greatest count is deemed a dismissal of every lesser count.

Court’s Reasoning

Regarding the hearsay statements, the Court of Appeals acknowledged that their admission might have been erroneous under People v. Trowbridge. However, citing People v. Milburn, the court concluded that the error was harmless. The court emphasized the “positive and unwavering identification testimony of both eyewitnesses.” One eyewitness had seen the defendant multiple times before and observed him during and after the crime. The other witness observed the defendant robbing the victim and later alerted the police.

Regarding the robbery and grand larceny convictions, the court agreed with the District Attorney’s concession that the verdict could not stand. The court reasoned that, on the facts of this case, the defendant could not have committed the robbery without also committing the grand larceny. This made the counts inclusory and concurrent, citing CPL 300.30, subd. 4 and People v. Hayes. The court cited CPL 300.40, subd. 3, par. (b): “Where the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count”.