| N.Y. App. Div. | Apr 14, 1977
Judgment, Supreme Court, New York County, rendered April 12, 1973, convicting the defendant after a jury trial of the crimes of attempt to commit the crime of murder; attempt to commit the crime of assault in the first degree; assault in the second degree (two counts); and possession of a weapon as a felony, unanimously modified on the law to the extent of reversing the convictions for the crimes of attempt to commit the crime of assault in the first degree; assault in the second degree (both counts); and possession of a weapon, and dismissing those counts of the indictment and otherwise affirmed. In the case at bar, the counts in the indictment related to assault and the possession of the .32 caliber gun were included within the greater offense of attempted murder and must, therefore, be considered as inclusory concurrent counts (CPL 300.30, subd 4). A verdict of guilty as to the greater count of attempt to commit the crime of murder is deemed a dismissal of all lesser included counts (CPL 300. 40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848; People v Pyles, 44 AD2d 784), and we have modified the judgment accordingly. We have reviewed the other points raised by appellant and found them to be without merit. Concur—Murphy, P. J., Lupiano, Capozzoli and Lane, JJ.