The People, etc., respondent, v. Richard McAllister, appellant. (2010)

Submitted-October 7, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lasak, J.), rendered June 25, 2008, convicting him of manslaughter in the second degree, assault in the second degree, reckless endangerment in the first 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 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.

As the defendant argues and the People correctly concede, criminal possession of a weapon in the fourth degree is a lesser-included offense of criminal possession of a weapon in the second degree (see Penal Law §§ 265.01[1], 265.03[1][b];  People v. Headley-Ombler, 270 A.D.2d 358, 359;  People v. Gonzalez, 227 A.D.2d 641, 642;  People v. Chatman, 122 A.D.2d 148, 149).   Thus, we vacate the conviction and sentence for criminal possession of a weapon in the fourth degree and dismiss that count of the indictment (see CPL 300.40[3][b];  People v. Headley-Ombler, 270 A.D.2d at 359;  People v. Gonzalez, 227 A.D.2d at 642).

The sentences imposed on the remaining counts were not excessive (see People v. Suitte, 90 A.D.2d 80).

FISHER, J.P., SANTUCCI, ENG and SGROI, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court