People v. Dockery

61 A.D.2d 940, 403 N.Y.S.2d 25, 1978 N.Y. App. Div. LEXIS 10534

Opinion

Judgment, Supreme Court, New York County, rendered January 14, 1976, convicting defendant after jury trial of criminal possession of a weapon in the second degree (Penal Law, § 265.03) and criminal possession of a weapon in the third degree (Penal Law, § 265.02), unanimously modified, on the law, to reverse and dismiss the latter count and vacate the sentence thereon, and otherwise affirmed. On the facts of this case, the two counts are inclusory concurrent counts. Where the verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greater is deemed a dismissal of the lesser count. (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847; People v Diaz, 56 AD2d 557.) We have examined the points raised by appellant and find them without merit. (See Penal Law, § 265.15, subd 4, second sentence.) Concur—Silverman, J. P., Fein, Lane, Markewich and Sullivan, JJ.