Opinion
March 10, 1977
Judgment, Supreme Court, New York County, rendered November 14, 1973, convicting the defendant after a jury trial of the crimes of rape in the first degree, burglary in the first degree, and possession of a weapon, unanimously modified, on the law, to the extent of reversing the conviction of the crime of possession of a weapon and dismissing that count of the indictment, and otherwise affirmed. In the case at bar, the possession and use of a knife by the defendant during the commission of the burglary constituted a lesser offense included within a greater offense and must therefore be considered as an inclusory concurrent count (CPL 300.30, subd 4). A verdict of guilty as to the greater count of burglary is deemed a dismissal of the lesser count of possession of a weapon (CPL 300.40, subd 3, par [b]; People v Grier, 37 N.Y.2d 847, 848; People v Pyles, 44 A.D.2d 784), and we have modified the judgment accordingly. We have reviewed the other points raised by the appellant and found them to be without merit.
Concur — Kupferman, J.P., Silverman, Lane and Nunez, JJ.