People v. Jordan

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Hayes, J.), rendered June 12, 1981, convicting him of burglary in the first degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the second degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. As the People concede in their brief, on the facts of this case defendant could not have committed burglary in the first degree, predicated upon physical injury caused to the victim, without also having committed assault in the second degree. Thus, that assault conviction is an inclusory concurrent count of the burglary conviction, and must be dismissed (CPL 300,40, subd 3, par [b]; People v Banks, 77 AD2d 742; People v Davis, 73 AD2d 674; People v Thorpe, 72 AD2d 590; People v James, 70 AD2d 939; People v Thompson, 59 AD2d 672; People v Ayala, 56 AD2d 561). We have considered defendant’s other contentions, and find them to be without merit. Gibbons, J. P., Gulotta, O’Connor and Niehoff, JJ., concur.