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People v. Rivers

Citations: 87 A.D.2d 579; 450 N.Y.S.2d 407; 1982 N.Y. App. Div. LEXIS 15846

Court: Appellate Division of the Supreme Court of the State of New York; February 28, 1982; New York; State Appellate Court

Narrative Opinion Summary

The defendant appealed a judgment from the Supreme Court, Kings County, which convicted him of several offenses: assault in the second degree, assault in the third degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree, based on a jury verdict. The appellate court modified the judgment by reversing the conviction for assault in the third degree and vacating the associated sentence, leading to the dismissal of that count of the indictment. This decision was based on the finding that the assault in the third degree charge was an inclusory concurrent count of the assault in the second degree; thus, a guilty verdict for the higher offense necessitated the dismissal of the lesser charge as per CPL 300.40, subdivision 3, paragraph [b]. The court reviewed the defendant's other arguments and found them insufficient to warrant reversal. Judges Titone, Lazer, Mangano, Gibbons, and Thompson concurred in the decision.

Legal Issues Addressed

Appellate Review of Defendant's Arguments

Application: The appellate court reviewed the defendant's other arguments and found them insufficient to warrant reversal of the remaining convictions.

Reasoning: The court reviewed the defendant's other arguments and found them insufficient to warrant reversal.

Inclusory Concurrent Counts under CPL 300.40(3)(b)

Application: The appellate court reversed the conviction for assault in the third degree and vacated the associated sentence because it was an inclusory concurrent count of assault in the second degree. A guilty verdict for the higher offense necessitated the dismissal of the lesser charge.

Reasoning: This decision was based on the finding that the assault in the third degree charge was an inclusory concurrent count of the assault in the second degree; thus, a guilty verdict for the higher offense necessitated the dismissal of the lesser charge as per CPL 300.40, subdivision 3, paragraph [b].