PEOPLE v. HEADLEY OMBLER (2000)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Marlow, J.), rendered November 12, 1997, convicting him of assault in the first degree (two counts), assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by (1) vacating the convictions of assault in the first degree (two counts) and vacating the sentence imposed thereon, and (2) vacating the conviction of criminal possession of a weapon in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on the two counts charging assault in the first degree.

 The defendant was charged, inter alia, with intentional assault in the first degree (see, Penal Law § 120.10[1] ) and reckless assault in the first degree (see, Penal Law § 120.10[3] ).   The Supreme Court erred when it denied the defendant's request to instruct the jury that their verdict must be in the alternative as to those charges (see, CPL 300.30[5];  People v. Gallagher, 69 N.Y.2d 525, 516 N.Y.S.2d 174, 508 N.E.2d 909).   Therefore, the convictions of those charges are vacated and a new trial is ordered on those counts.

 Criminal possession of a weapon in the fourth degree is a lesser-included offense of criminal possession of a weapon in the second degree under the facts of this case.   We thus vacate the conviction for the lesser-included offense and dismiss that count (see generally, People v. Queen, 258 A.D.2d 480, 684 N.Y.S.2d 613).

The defendant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.