People v. Davis 63 A.D.2d 685

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 24, 1976, convicting him of robbery in the second degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the second degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Under the facts of this case, assault in the second degree was an inclusory concurrent count of robbery in the second degree. Accordingly, the assault conviction must be reversed and the said count dismissed. Were it not for the overwhelming evidence of guilt in this case, it would be necessary to reverse the robbery conviction as well, due to the improper conduct of the prosecutor. The prosecutor repeatedly asked the defendant whether he thought the prosecutorial witnessed were lying. This tactic was condemned in People v Mariable (58 AD2d 877). It is irrelevant whether the defendant believed other witnesses were lying. The error was compounded by the excessive emphasis of that issue before the jury during the summation. However, the overwhelming evidence of guilt warrants an affirmance of the robbery conviction (see People v Crimmins, 36 NY2d 230). Latham, J. P., Suozzi, Margett and Hawkins, JJ., concur.