People v. Williams

57 A.D.2d 850, 394 N.Y.S.2d 36

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 3, 1975 (the date on the clerk’s extract is April 4, 1975), convicting him of attempted murder and possession of weapons, etc., as a felony (two counts), upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of possession of weapons, etc., as a felony (under count three of Indictment No. 2961/1972), and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Under the facts of this case, the defendant-appellant could not have committed the crime of attempted murder without having also been guilty of the crime of possession of weapons, etc. (a black handgun), as charged in count three of Indictment No. 2961/1972. Therefore, the defendant’s conviction under the said count must be reversed; that count is concurrent to, and included within, the count which charged attempted murder (see CPL 300.40, subd 4; People v Grier, 37 NY2d 847; People v Fluker, 54 AD2d 738). We have examined the defendant’s other arguments for reversal and find them to be without merit. Hopkins, Acting P. J., Margett, Damiani and Rabin, JJ., concur.