Opinion
No. 12–P–440.
2013-01-31
COMMONWEALTH v. Michael BROWNE.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Upon consideration of the briefs and record appendix and after oral argument, we discern nothing that would cause us to reverse the defendant's convictions on four of the five counts of the complaint (1, 2, 4 and 5).
On count 3, however, we agree that the convictions based on the same ammunition that is an element of both a violation of G.L.c. 269, § 10( h )(1) and 10( n ), are impermissibly duplicative. The conviction based on G.L.c. 269, § 10( h )(1), cannot stand. In short, as that conviction is a lesser included offense, see Commonwealth v. Johnson, 461 Mass. 44, 51–54 (2011), it must be reversed, and the matter must be remanded for resentencing. See Commonwealth v. Kruah, 47 Mass.App.Ct. 341, 348 (1999). The remaining convictions are otherwise affirmed.
The judgment on count 3 of the complaint is reversed, the verdict is set aside, and that count of the complaint is dismissed. The judgments of conviction on the remaining four counts are affirmed, but the sentences are vacated. The case is remanded for resentencing.
So ordered.