THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILSON STEWART DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of assault in the second degree and dismissing count two of the indictment and as modified the judgment is affirmed.

Memorandum:  Defendant appeals from a judgment convicting him, upon a nonjury verdict, of assault in the first degree (Penal Law § 120.10[1] ), assault in the second degree (§ 120.05[2] ) and criminal possession of a weapon in the third degree (§ 265.02[1] ).   We previously held the case, reserved decision and remitted the matter to County Court to rule on that part of defendant's pretrial motion seeking inspection of the grand jury minutes to determine whether the grand jury proceedings were defective (People v. Stewart, 111 AD3d 1395).   Upon remittal, the court concluded that the grand jury proceedings were not defective, and defendant does not challenge that ruling upon resubmission of this appeal.   We agree with defendant that assault in the second degree (§ 120.05[2] ) under count two of the indictment is a lesser included offense of assault in the first degree (§ 120.10[1] ) “and therefore should have been considered only in the alternative as an inclusory concurrent count of assault in the first degree” (People v. Flecha, 43 AD3d 1385, 1386, lv denied 9 NY3d 990;  see CPL 300.30[4];  300.40[3][b] ).  We thus modify the judgment accordingly.   Finally, the sentence is not unduly harsh or severe.

Frances E. Cafarell

Clerk of the Court