The People, etc., respondent, v. William Dineen, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. William Dineen, appellant.

2009–07409 (Ind.No. 08–00610)

Decided: September 20, 2011

WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. Jillian S. Harrington, New York, N.Y., for appellant. Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Grasso and Andrew R. Kass of counsel), for respondent.

Submitted—June 21, 2011

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered July 29, 2009, convicting him of assault in the second degree (two counts) and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

After the jury announced its verdict, but before the jury was dismissed, defense counsel argued that the verdict was repugnant because the defendant was acquitted of the first and second counts of assault in the first degree (Penal Law § 120.10[1] ), but was convicted under the third and fourth counts of assault in the second degree (Penal Law § 120.05[1] ).   The defendant also was convicted under the fifth and sixth counts of assault in the second degree (Penal Law § 120.05[2] ) and the seventh count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01[2] ).

A colloquy ensued in which defense counsel consented to the remedy proposed by the County Court, which was to dismiss the third and fourth counts charging assault in the second degree (Penal Law § 120.05[1] ), thereby obviating the need to resubmit the matter to the jury.   Accordingly, the defendant waived his claim of repugnancy (see People v. Cervantes, 242 A.D.2d 730;  People v. Abreu, 184 A.D.2d 707;  People v. Gupta, 86 A.D.2d 960).

The defendant was afforded the effective assistance of counsel (see People v. Taylor, 1 NY3d 174, 177;  People v. Benevento, 91 N.Y.2d 708;  People v. Rivera, 71 N.Y.2d 705).

The sentence imposed was not excessive (see People v. Thompson, 60 N.Y.2d 513, 519;  People v. Suitte, 90 A.D.2d 80).

MASTRO, J.P., CHAMBERS, AUSTIN and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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