Opinion
June 22, 1990
Appeal from the Steuben County Court, Finnerty, J.
Present — Dillon, P.J., Callahan, Green, Davis and Lowery, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant was convicted of one count of vehicular assault in the second degree (Penal Law § 120.03) and two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192, [3]). The convictions under the Vehicle and Traffic Law must be reversed, the counts dismissed, and the sentences imposed vacated because they are inclusory concurrent counts of the count of vehicular assault in the second degree (see, CPL 300.40 [b]; People v. Eccleston, 161 A.D.2d 1184). Additionally, it was error for the court to have admitted, without foundation, testimony concerning the rate of speed of defendant's vehicle (see, People v. Olsen, 22 N.Y.2d 230; Pieniewski v. Benbenek, 56 A.D.2d 710). The error, however, is harmless in light of the overwhelming evidence of guilt and there does not exist a significant probability that the jury would have acquitted the defendant but for the error (People v. Crimmins, 36 N.Y.2d 230, 242). Finally, under the circumstances, we find no merit to defendant's contention that the sentence imposed was harsh and excessive (see, People v. Farrar, 52 N.Y.2d 302).