People v. Garcia

Judgment, Supreme Court, New York County, rendered May 29, 1974, convicting defendant, after a jury trial, of assault in the first degree (two counts) and of possession of a weapon as a felony, unanimously modified, on the law, to the extent of reversing defendant’s conviction of possession of a weapon, vacating the sentence imposed thereon and dismissing said count of the indictment. Except as so modified, said judgment is affirmed. As the People concede, under the facts of this case defendant’s possession of a weapon is an inclusory concurrent count of assault in the first degree. Accordingly, defendant’s conviction of assault entitled him to dismissal of the lesser crime charged. (People v Rivera, 46 AD2d 642.) Concur—Murphy, J. P., Lupiano, Birns, Capozzoli and Nunez, JJ.