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PEOPLE v. WINSTON

52 A.D.2d 432 (1976)

The People of the State of New York, Respondent, v. John Winston, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

June 10, 1976

Attorney(s) appearing for the Case

Jane E. Berger of counsel (William J. Gallagher and William E. Hellerstein, attorneys), for appellant.

Brian Rosner of counsel (Peter L. Zimroth with him on the brief; Robert M. Morgenthau, District Attorney), for respondent.

STEVENS, P. J., and MARKEWICH, J., concur with LYNCH, J.; CAPOZZOLI and NUNEZ, JJ., dissent in an opinion by NUNEZ, J.

LYNCH, J.

The defendant appeals his conviction, after a jury trial, of assault in the second degree, attempted grand larceny in the third degree and two counts of attempted robbery in the second degree. The District Attorney concedes and we agree that the attempted grand larceny would be dismissible as an inclusory concurrent count, under CPL 300.40, of the attempted robbery (People v Rivera,

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