SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 3, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JAMES SAMUEL WOODS, APPELLANT
Judgment of the County Court, Dutchess County, rendered November 23, 1966, modified, on the law and the facts and in the interests of justice, by striking out the sentences on the second, third and fourth counts of the indictment and reducing the conviction on each of said counts from robbery in the first degree to robbery in the second degree.
Beldock, P. J., Christ, Brennan, Hopkins and Martuscello, JJ., concur.
In our opinion, the first verdict of the jury, which found defendant guilty of robbery in the second degree but, nevertheless, found defendant guilty of conspiracy as a felony, was a consistent verdict (People v. Tavormina, 257 N. Y. 84; People v. Montgomery, 21 A.D.2d 904). Therefore, it was error to charge the jury to reconsider their verdict. Defendant's failure to take exception to the charge to reconsider the verdict is overlooked in the interests of justice.
As so modified, judgment affirmed and case remitted to the County Court, Dutchess County, for resentence on said counts.
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