Opinion
Submitted June 22, 1999
October 4, 1999
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.).
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the first degree under the eighth count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.
As correctly conceded by the People, the eighth count of the indictment for assault in the first degree with intent to cause serious physical injury constituted a concurrent inclusory count of the conviction of attempted murder in the second degree ( see, People v. Oglesby, 84 A.D.2d 541). Thus, the conviction therefor must be vacated and that count must be dismissed.
The sentence imposed on the remaining counts was not excessive ( see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contentions are without merit.
THOMPSON, J.P., FRIEDMANN, SCHMIDT, and SMITH, JJ., concur.