The People, etc., respondent, v. Cedric McCalla, appellant. (2011)

Submitted—December 6, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.), rendered June 9, 2009, convicting him of assault in the second degree and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

The trial court providently exercised its discretion in limiting the scope of defense counsel's questioning of prospective jurors during voir dire (see CPL 270.15[1][c];  People v. Pepper, 59 N.Y.2d 353, 358, 359;  People v. Byrd, 284 A.D.2d 201;  People v. Corbett, 68 A.D.2d 772, 778–779, affd 52 N.Y.2d 714).

As the People correctly concede, the defendant's conviction of assault in the third degree must be vacated and that count of the indictment dismissed as an inclusory concurrent count of assault in the second degree (see CPL 300.40 [3][b];  Penal Law §§ 120.05[1], 120.00[1] ).

RIVERA, J.P., ENG, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court