Opinion
March 9, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 19, 1980, convicting him of criminal possession of a weapon in the third degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of criminal possession of a weapon in the fourth degree and the sentence imposed thereon, and said count is dismissed. As so modified, judgment affirmed and case remanded to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd 5). Under the facts of this case, criminal possession of a weapon in the fourth degree is an inclusory concurrent count of criminal possession of a weapon in the third degree (see CPL 300.30, subd 4; 300.40, subd 3, par [b]). Accordingly, the criminal possession of a weapon in the fourth degree charge should have been dismissed when the jury returned a guilty verdict on the criminal possession in the third degree count (see People v. Johnson, 39 N.Y.2d 364, 370; People v Odom, 67 A.D.2d 686). We have examined the defendant's remaining contentions and have found them to be without merit. Titone, J.P., Gibbons, O'Connor and Thompson, JJ., concur.