People v. Harris

65 A.D.2d 628, 409 N.Y.S.2d 521, 1978 N.Y. App. Div. LEXIS 13336

Opinion

Appeal by defendant from a judgment of the County Court, Westchester County, rendered November 10, 1977, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction and sentence for criminal possession of a weapon in the fourth degree and dismissing said count. As so modified, judgment affirmed. Under the facts of this case criminal possession of a weapon in the fourth degree is an inclusory concurrent count of assault in the second degree. Where inclusory concurrent counts are involved, a verdict of guilty on the greatest count is deemed a dismissal of every lesser count (CPL 300.40, subd 3, par [b]). Accordingly, the conviction and sentence for possession of a weapon must be reversed and said count dismissed (see People v Shuler, 50 AD2d 908). The judgment in all other respects should be affirmed. Mollen, P. J., Hopkins, Titone, Hawkins and O’Connor, JJ., concur.