Opinion
January 23, 1984
Appeal by defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered June 26, 1982, convicting him of robbery in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction for criminal possession of a weapon in the third degree and the sentence imposed thereon and dismissing that count of the indictment. As so modified, judgment affirmed. Prior to trial, defendant moved, inter alia, to dismiss the count of the indictment charging him with criminal possession of a weapon in the third degree. The court erroneously denied this request. The indictment alleges only that defendant unlawfully possessed a knife. It does not also allege that the defendant intended to use the knife unlawfully and thus, as the People concede, it is fatally defective (cf. Penal Law, § 265.01, subd [2]). Consequently, the conviction for this crime must be reversed and the count of the indictment dismissed (cf. People v Iannone, 45 N.Y.2d 589). The other alleged errors raised by defendant are either harmless or without merit. Mollen, P.J., Lazer, Mangano and Brown, JJ., concur.