People v. Rosales

303 A.D.2d 769, 757 N.Y.S.2d 442

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 2003
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered March 16, 2001, convicting him of assault in the second degree, assault in the third degree, menacing in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The People correctly concede that assault in the third degree is a lesser-included offense of assault in the second degree. We thus vacate the conviction on that lesser-included offense (see People v Cureton, 268 AD2d 532 [2000]; People v Queen, 258 AD2d 480 [1999]). We need not vacate the sentence imposed on the conviction of that crime, as no sentence was imposed.

In view of the confusion over the trial court’s charge and the possibility that the jury’s verdict was either factually or legally repugnant, the trial court’s clarification and re-submission of the counts to the jury was the proper remedial procedure (see CPL 310.50 [2]; People v Salemmo, 38 NY2d 357, 360-61 [1976]).

The defendant’s remaining contention is without merit. Ritter, J.P., Altman, S. Miller and Townes, JJ., concur.