People v. Allen
| Decision Date | 02 February 1989 |
| Citation | 537 N.Y.S.2d 174,147 A.D.2d 352 |
| Parties | , 148 A.D.2d 394 The PEOPLE of the State of New York, Respondent, v. William ALLEN, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
A.M. Schaible, Bronx, for respondent.
A. Cypher, New York City, for defendant-appellant.
Before MURPHY, P.J., and KUPFERMAN, ASCH, KASSAL and WALLACH, JJ.
Judgment of the Supreme Court, Bronx County (Frank Diaz, J.), rendered on March 31, 1987, convicting defendant, after a jury trial, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25), assault in the first degree (Penal Law § 120.10), and assault in the second degree (Penal Law § 120.05), and sentencing defendant to concurrent indeterminate prison terms of from 8 1/3 to 25 years, 5 to 15 years, and 2 1/3 to 7 years, respectively, unanimously modified, on the law, to the extent of reversing defendant's conviction for assault in the second degree, vacating the concurrent sentence imposed thereon and dismissing that count of the indictment, and except as so modified, affirmed.
As the People commendably concede, defendant could not be simultaneously convicted of assault in the first degree and the lesser included concurrent count of assault in the second degree. Upon defendant's conviction of assault in the first degree, the count of assault in the second degree ought to have been deemed dismissed (see CPL §§ 300.30[3] and [4] and 300.40[3][b]; see also People v. Beatty, 134 A.D.2d 602, 521 N.Y.S.2d 500; People v. Ridout, 46 A.D.2d 643, 360 N.Y.S.2d 642).
The other points raised on the appeal have been considered and found to be without merit.
To continue reading
Request your trial
-
People v. Smallwood
...inclusory concurrent count and that defendant's conviction for that charge should be reversed (see, CPL 300.40[3][b]; People v. Allen, 147 A.D.2d 352, 537 N.Y.S.2d 174, lv. denied 73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593). Accordingly, we modify the judgment to reverse that convicti......
-
People v. Stevenson
...count, both of the latter counts should have been deemed dismissed upon defendant's conviction of the former. (See, People v. Allen, 147 A.D.2d 352, 537 N.Y.S.2d 174, lv. to app. den., 73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593.) We have considered defendant's remaining contentions an......
-
People v. Davis
...be vacated and that count of the indictment dismissed because it is an inclusory concurrent count ( see People v. Allen, 148 A.D.2d 394, 147 A.D.2d 352, 537 N.Y.S.2d 174 [1989] lv denied 73 N.Y.2d 1010, 541 N.Y.S.2d 765, 539 N.E.2d 593 [1989]; People v. Ridout, 46 A.D.2d 643, 360 N.Y.S.2d 6......
- People v. Allen