People v. Byrd

63 A.D.2d 879, 405 N.Y.S.2d 1001, 1978 N.Y. App. Div. LEXIS 11873

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered May 3, 1976, convicting defendant after jury trial of, inter alia, attempted murder in the second degree, burglary in the first degree (two counts), assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, unanimously modified, on the law, to dismiss the counts of assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, and otherwise affirmed. Defendant, on the facts of this case, could not have committed the attempted murder in the second degree, without also committing the assault in the first degree and the criminal possession of a weapon in the second and third degrees, the counts being inclusory and concurrent (CPL 300.30, subd 4; People v Arroyo, 57 AD2d 523; People v Santiago, 47 AD2d 867). A verdict of guilty as to the greater count of attempt to commit the crime of murder is deemed a dismissal of all lesser included counts (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848). Concur—Murphy, P. J., Lupiano, Fein, Markewich and Yesawich, JJ.