Opinion
March 23, 1998
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is modified, on the law, by vacating the conviction for assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the prosecution's summation constituted reversible error is unpreserved for appellate review (see, CPL 470.05; People v. Medina, 53 N.Y.2d 951; People v. Udzinski, 146 A.D.2d 245), and we decline to reach it in the exercise of our interest of justice jurisdiction.
The People correctly concede that the defendant's conviction of assault in the second degree must be dismissed as an inclusory concurrent count of assault in the first degree (see, CPL 300.40 [b]; Penal Law § 120.10; § 120.05 [2]; People v. Garofalo, 192 A.D.2d 619).
Copertino, J. P., Altman, Florio and Luciano, JJ., concur.