People v. Napolitano ( 1977 )

Appeal by defendants from two judgments of the Supreme Court, Kings County (one as to each of them), both rendered July 22, 1975, convicting each of promoting gambling in the second degree and possession of gambling records in the first and second degrees, upon a jury verdict, and imposing sentence. Judgments modified, on the law, by reversing the conviction as to each defendant of possession of gambling records in the second degree, and the sentences imposed thereon, and the said count is dismissed. As so modified, judgments affirmed. This case is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd 5). This court, sua sponte, is reversing the conviction as to each defendant of possession of gambling records in the second degree. It was error not to dismiss that count as an inclusory concurrent count upon their conviction of possession of gambling records in the first degree (see CPL 300.40, subd 3, par [b]). We have considered defendants’ other contentions and find them to be without merit. Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.