SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1109 

KA 08-01268 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND LINDLEY, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

SALEEM K. ALI, DEFENDANT-APPELLANT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (VICTORIA M. WHITE

OF COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Onondaga County Court (William D.

Walsh, J.), rendered August 8, 2007. The judgment convicted

defendant, upon a jury verdict, of burglary in the first degree,

assault in the second degree, attempted robbery in the first degree,

burglary in the second degree, and criminal possession of a weapon in

the fourth degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously modified on the law by reversing that part convicting

defendant of burglary in the second degree and dismissing count four

of the indictment and as modified the judgment is affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a jury verdict of, inter alia, burglary in the first degree

(Penal Law § 140.30 [2]), assault in the second degree (§ 120.05 [6]),

attempted robbery in the first degree (§§ 110.00, 160.15 [1]), and

burglary in the second degree (§ 140.25 [2]). Contrary to defendant’s

contention, County Court properly refused to charge burglary in the

second degree (§ 140.25 [2]) as a lesser included offense of burglary

in the first degree (§ 140.30 [2]). “No reasonable view of the

evidence supports a finding that defendant committed the lesser

offense[] but not the greater” (People v Lockett, 1 AD3d 932, 933, lv

denied 1 NY3d 630; see generally People v Glover, 57 NY2d 61, 63). As

the People correctly concede, however, defendant’s conviction under

count four of the indictment, charging him with burglary in the second

degree, must be reversed and that count dismissed because it is a

lesser inclusory concurrent count of count one, charging defendant

with burglary in the first degree, of which he was convicted (see

People v Coleman, 82 AD3d 1593, 1595, lv denied 17 NY3d 793). We

therefore modify the judgment accordingly.

We further conclude that there is no merit to defendant’s
-2- 1109 

KA 08-01268 

contention that his conviction of assault in the second degree (Penal

Law § 120.05 [6]) should be reversed and that count dismissed pursuant

to CPL 300.40 (3) (b) as a lesser inclusory concurrent count of

burglary in the first degree (Penal Law § 140.30 [2]), of which he was

convicted. The instant charge of assault requires evidence of the

infliction of physical injury “in furtherance of” the commission of

the underlying felony of burglary, and such evidence is not required

for the burglary conviction. Thus, the assault was not a lesser

included offense of the burglary (see People v Curella, 296 AD2d 578,

579). We note that our conclusion is consistent with the decision of

the Court of Appeals in People v Abrew (95 NY2d 806). There, the

defendant was convicted of assault in the first degree under Penal Law

§ 120.10 (4), which requires that the defendant or another participant

cause serious physical injury to a person other than one of the

participants “[i]n the course of and in furtherance of the commission

or attempted commission of a felony or of immediate flight therefrom”

(emphasis added). The defendant also was convicted of robbery in the

first degree, which requires proof that a defendant or another

participant in the crime cause serious physical injury to a

nonparticipant “[i]n the course of the commission of the crime or of

immediate flight therefrom,” but does not require that the infliction

of serious physical injury have been in furtherance of the commission

of the robbery (§ 160.15 [1]; see Abrew, 95 NY2d at 808-809). The

Court in Abrew thus determined that section 120.10 (4) was not an

inclusory concurrent count of robbery in the first degree under Penal

Law § 160.15 (1) (id.). To the extent that the prior decision of this

Court in People v Rodrigues (74 AD3d 1818, lv denied 15 NY3d 809, cert

denied ___ US ___, 131 S Ct 1505) suggests a rule to the contrary, we

note that the decision in that case was based on an incorrect

concession by the People and did not address the distinction drawn in

Abrew. We thus conclude that Rodrigues and earlier cases decided

without reference to Abrew should no longer be followed. Contrary to

defendant’s further contention, in the context of this case, assault

in the second degree (§ 120.05 [6]) is not an inclusory concurrent

count of attempted robbery in the first degree (§§ 110.00, 160.15

[1]).

Defendant failed to preserve for our review his contention that

his conviction of attempted robbery in the first degree is not

supported by legally sufficient evidence inasmuch as the People failed

to establish the element of serious physical injury (see People v

Gray, 86 NY2d 10, 19), and in any event that contention is without

merit (see generally People v Bleakley, 69 NY2d 490, 495). Based on

the evidence at trial, there is a valid line of reasoning and

permissible inferences that could lead a rational person to the

conclusion reached by the jury, i.e., that defendant caused one of the

victims of the attempted robbery to sustain a serious physical injury

(see People v Brown, 67 AD3d 1427, 1428, lv denied 14 NY3d 839; see

generally Bleakley, 69 NY2d at 495). Moreover, inasmuch as we have

concluded that the evidence is legally sufficient to support the

conviction of attempted robbery, there is no merit to defendant’s

further contention that he was denied effective assistance of counsel

based on defense counsel’s failure to make a specific motion for a
-3- 1109 

KA 08-01268 

trial order of dismissal with respect to that count (see People v

Washington, 60 AD3d 1454, 1455, lv denied 12 NY3d 922). 

Defendant failed to object to the alleged repugnancy of the

verdict before the jury was discharged and thus failed to preserve for

our review his further contention that the verdict is repugnant

insofar as the jury found him guilty of attempted robbery in the first

degree and acquitted him of assault in the first degree under Penal

Law § 120.10 (4) (see People v Alfaro, 66 NY2d 985, 987; People v

Roman, 85 AD3d 1630, 1630-1631, lv denied 17 NY3d 821). In any event,

that contention lacks merit (see generally People v Tucker, 55 NY2d 1,

6-7, rearg denied 55 NY2d 1039), and we thus also “reject the

contention of defendant that he was denied effective assistance of

counsel based on defense counsel’s failure to object to the verdict on

the ground that it was repugnant” (People v Henderson, 78 AD3d 1506,

1507, lv denied 16 NY3d 743; see Roman, 85 AD3d at 1631). Finally,

the sentence is not unduly harsh or severe.

Entered: November 10, 2011 Patricia L. Morgan

Clerk of the Court