People v LaConte

People v LaConte 2007 NY Slip Op 09050 [45 AD3d 699] November 13, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

The People of the State of New York, Respondent,
v
Jason LaConte, Appellant.

—[*1] Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Ellen C. Abbot, and Jessica L. Melton of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rotker, J.), rendered May 10, 2005, convicting him of assault in the first degree, assault in the second degree (two counts), and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the convictions of assault in the second degree (two counts) and the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant's contention that his waiver of the right to a jury trial was invalid is unpreserved for appellate review (see CPL 470.05 [2]; People v Torres, 24 AD3d 692 [2005]; People v Magnano, 158 AD2d 979 [1990], affd 77 NY2d 941 [1991], cert denied 502 US 864 [1991]). In any event, the record demonstrates that the defendant knowingly, voluntarily, and intelligently waived that right (see People v Torres, 24 AD3d at 692; People v Hunter, 237 AD2d 304, 305 [1997]).

The defendant contends, and the People correctly concede, that the defendant's convictions of two counts of assault in the second degree must be vacated, and those counts of the indictment dismissed, as they are inclusory concurrent counts of assault in the first degree (see CPL 300.30 [4]; 300.40 [3] [b]; Penal Law § 120.05 [1], [2]; § 120.10 [1]; People v DeFreitas, 19 AD3d 506, 507 [2005]). Spolzino, J.P., Ritter, Covello and Dickerson, JJ., concur.