           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

832
KA 11-01321
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

WILSON STEWART, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Onondaga County Court (Joseph E.
Fahey, J.), rendered July 9, 2010. The appeal was held by this Court
by order entered November 15, 2013, decision was reserved and the
matter was remitted to Onondaga County Court for further proceedings
(111 AD3d 1395). The proceedings were held and completed.

     It is hereby ORDERED that the   judgment so appealed from is
unanimously modified on the law by   reversing that part convicting
defendant of assault in the second   degree and dismissing count two of
the indictment and as modified the   judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a nonjury verdict, of assault in the first degree (Penal Law
§ 120.10 [1]), assault in the second degree (§ 120.05 [2]) and
criminal possession of a weapon in the third degree (§ 265.02 [1]).
We previously held the case, reserved decision and remitted the matter
to County Court to rule on that part of defendant’s pretrial motion
seeking inspection of the grand jury minutes to determine whether the
grand jury proceedings were defective (People v Stewart, 111 AD3d
1395). Upon remittal, the court concluded that the grand jury
proceedings were not defective, and defendant does not challenge that
ruling upon resubmission of this appeal. We agree with defendant that
assault in the second degree (§ 120.05 [2]) under count two of the
indictment is a lesser included offense of assault in the first degree
(§ 120.10 [1]) “and therefore should have been considered only in the
alternative as an inclusory concurrent count of assault in the first
degree” (People v Flecha, 43 AD3d 1385, 1386, lv denied 9 NY3d 990;
see CPL 300.30 [4]; 300.40 [3] [b]). We thus modify the judgment
accordingly. Finally, the sentence is not unduly harsh or severe.

Entered:    July 11, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
