People v. Rivers

87 A.D.2d 579, 450 N.Y.S.2d 407, 1982 N.Y. App. Div. LEXIS 15846

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (De Lury, J.), rendered November 15,1979, convicting him of assault in the second degree, assault in the third degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the third degree and vacating the sentence imposed thereon, and that count of the indictment is dismissed. As so modified, judgment affirmed. Under the facts of this case, the count charging assault in the third degree was an inclusory concurrent count of assault in the second degree. Therefore, a guilty verdict of the greater offense requires dismissal of the lesser offense (see CPL 300.40, subd 3, par [b]). We have reviewed the defendant’s remaining arguments and find they do not merit reversal. Titone, J. P., Lazer, Mangano, Gibbons and Thompson, JJ., concur.