People v. Lau

88 A.D.2d 808, 451 N.Y.S.2d 95, 1982 N.Y. App. Div. LEXIS 17110

Opinion

— Judgment of the Supreme Court, New York County (Edwards, J.), rendered February 15,1980, which convicted defendant of two counts of assault in the first degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree and sentenced him to concurrent terms of imprisonment of 5 to 15 years for assault, 2Va to 7 years for reckless endangerment, and 5 to 15 years for criminal possession of a weapon, modified, on the law, to dismiss the charge of reckless endangerment in the first degree and the sentence thereon vacated, and otherwise affirmed. The assault and reckless endangerment charges of which appellant was convicted arose out of the same criminal transaction. The definition of endangerment in the first degree is virtually identical to that of assault in the first degree, except that it does not include the additional element of causing serious physical injury. Thus, reckless endangerment in the first degree is a lesser included offense of assault in the first degree (see CPL 1.20, subd 37). Since a verdict of guilty upon the greater count is deemed by statute (CPL 300.40, subd 3) to constitute a dismissal of every lesser included offense submitted for the jury’s consideration, the charge of reckless endangerment should have been dismissed. Appellant’s other contentions are without merit. Concur — Carro, J. P., Lupiano, Silverman, Fein and Milonas, JJ.