People v. Montalvo

Judgment of the Supreme Court, New York County (Albert P. Williams, J.), rendered on October 11, 1983, convicting defendant, following a jury trial, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree and sentencing him, as a predicate felon, to concurrent indeterminate terms of incarceration of from 3 Vi to 7 years and 2 Vi to 5 years, is unanimously modified, on the law, to the extent of dismissing the conviction for criminal possession of a weapon in the third degree and vacating the sentence thereon, and otherwise affirmed.

Defendant correctly contends, and the People concede, that since both counts herein concern the same transaction, the crime of criminal possession of a weapon in the third degree for possessing a loaded firearm is a lesser included offense of criminal possession of a weapon in the second degree for possessing a loaded firearm with the intent to use it unlawfully against another. (People v Jackson, 111 AD2d 648.) Consequently, defendant is entitled to dismissal of his conviction for criminal possession of a weapon in the third degree and vacatur of the sentence imposed thereon. Concur — Sullivan, J. P., Fein, Lynch, Milonas and Kassal, JJ.