People v. Mabee

300 A.D.2d 509, 750 N.Y.S.2d 893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2002
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered October 24, 2000, convicting him of murder in the second degree, manslaughter in the second degree, criminal possession of a weapon in the third degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of manslaughter in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Since “the verdict is comprised of inclusory concurrent counts a verdict of guilty on the greatest count is deemed a dismissal of every lesser count” (People v Grier, 37 NY2d 847, 848). Accordingly, as the People correctly concede, the defendant’s conviction of manslaughter in the second degree must be vacated, and that count of the indictment dismissed (see People v Rivera, 268 AD2d 538, 539).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Prudenti, P.J., Florio, Friedmann and Adams, JJ., concur.