Opinion
2001-09007.
December 22, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered September 28, 2001, convicting him of assault in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Lynn W.L. Fahey, New York, N.Y. (Steven R. Bernhard of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William C. Milaccio of counsel), for respondent.
Before: WILLIAM F. MASTRO and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The testimony elicited upon the cross-examination of the defendant's alibi witnesses was probative of their bias and interest in the outcome of the case, and outweighed any possible prejudice or confusion which may have arisen from its admission into evidence ( see People v. Brown, 62 A.D.2d 715, 720, affd 48 N.Y.2d 921; see also People v. Glennon, 175 N.Y. 45, 52; People v. Green, 156 A.D.2d 465; People v. Rahman, 62 A.D.2d 968, 969, affd 46 N.Y.2d 882). Therefore, the trial court providently exercised its discretion in admitting the testimony ( see People v. Duffy, 36 N.Y.2d 258, 262-263, cert denied 423 U.S. 861).
However, as correctly noted by the People, the count of assault in the second degree upon which the defendant was convicted constituted a concurrent inclusory count of the conviction of assault in the first degree ( see People v. Grier, 37 N.Y.2d 847; People v. Martir, 262 A.D.2d 333, 334). Accordingly, the conviction of assault in the second degree must be vacated, and that count of the indictment dismissed.
The defendant's remaining contention is unpreserved for appellate review ( see People v. Stokes, 132 A.D.2d 718, 719).
KRAUSMAN, J.P., SCHMIDT, MASTRO and RIVERA, JJ., concur.