Opinion
1429
June 20, 2002.
Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered November 14, 2000, as amended January 26, 2001, convicting defendant, after a jury trial, of assault in the first and second degrees, and sentencing her to concurrent terms of 6 and 5 years, respectively, unanimously modified, on the law, to the extent of vacating the second-degree assault conviction and dismissing that count, and otherwise affirmed.
HILARY HASSLER, for Respondent.
ROBERT S. DEAN, for Defendant-appellant.
Saxe, J.P., Sullivan, Lerner, Rubin, Friedman, JJ.
The court properly exercised its discretion in permitting the People to introduce rebuttal evidence since it was offered to disprove affirmative assertions made by defendant in her direct examination (see, People v. Harrington, 262 A.D.2d 220, lv denied, 94 N.Y.2d 823; see also, People v. Alvino, 71 N.Y.2d 233, 248; CPL 260.30). The officer's rebuttal testimony went into greater detail than his direct testimony and refuted specific claims made on defendant's case. Accordingly, the rebuttal was not a mere repetition of a portion of the People's direct case.
As the People commendably concede, the second-degree assault count should have been dismissed as an inclusory concurrent count of the first-degree assault count (see, CPL 300.40[b]).
We perceive no basis for a reduction of sentence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.