People v. Allen

147 A.D.2d 352, 537 N.Y.S.2d 174, 1989 N.Y. App. Div. LEXIS 942

Opinion

— Judgment of the Supreme Court, Bronx County (Frank Diaz, J.), rendered on March 31, 1987, convicting defendant, after a jury trial, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25), assault in the first degree (Penal Law § 120.10), and assault in the second degree (Penal Law § 120.05), and sentencing defendant to concurrent indeterminate prison terms of from 8 Vs to 25 years, 5 to 15 years, and lVs to 7 years, respectively, unanimously modified, on the law, to the extent of reversing defendant’s conviction for assault in the second degree, vacating the concurrent sentence imposed thereon and dismissing that count of the indictment, and except as so modified, affirmed.

As the People commendably concede, defendant could not be simultaneously convicted of assault in the first degree and the lesser included concurrent count of assault in the second degree. Upon defendant’s conviction of assault in the first degree, the count of assault in the second degree ought to have been deemed dismissed (see, CPL 300.30 [3], [4]; 300.40 [3] [b]; see also, People v Beatty, 134 AD2d 602; People v Ridout, 46 AD2d 643).

The other points raised on the appeal have been considered and found to be without merit. Concur — Murphy, P. J., Kupferman, Asch, Kassal and Wallach, JJ.