| People v Stewart |
| 2014 NY Slip Op 05284 [119 AD3d 1455] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vWilson Stewart, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered July 9, 2010. The appeal was held by this Court by order entered November 15,2013, decision was reserved and the matter was remitted to Onondaga County Court forfurther proceedings (111 AD3d 1395 [2013]). The proceedings were held andcompleted.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of assault in the second degree anddismissing count two of the indictment and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon a nonjuryverdict, of assault in the first degree (Penal Law § 120.10 [1]), assault in thesecond degree (§ 120.05 [2]) and criminal possession of a weapon in thethird degree (§ 265.02 [1]). We previously held the case, reserved decisionand remitted the matter to County Court to rule on that part of defendant's pretrial motionseeking inspection of the grand jury minutes to determine whether the grand juryproceedings were defective (People v Stewart, 111 AD3d 1395 [2013]). Uponremittal, the court concluded that the grand jury proceedings were not defective, anddefendant does not challenge that ruling upon resubmission of this appeal. We agree withdefendant that assault in the second degree (§ 120.05 [2]) under count twoof the indictment is a lesser included offense of assault in the first degree(§ 120.10 [1]) "and therefore should have been considered only in thealternative as an inclusory concurrent count of assault in the first degree" (People v Flecha, 43 AD3d1385, 1386 [2007], lv denied 9 NY3d 990 [2007]; see CPL 300.30[4]; 300.40 [3] [b]). We thus modify the judgment accordingly. Finally, the sentence isnot unduly harsh or severe. Present— Centra, J.P., Fahey, Carni, Sconiers andValentino, JJ.