People v. Medina , 56 A.D.2d 771 ( 1977 )

Judgment, Supreme Court, New York County, rendered November 14, 1973, convicting the defendant after a jury trial of the crimes of rape in the first degree, burglary in the first degree, and possession of a weapon, unanimously modified, on the law, to the extent of reversing the conviction of the crime of possession of a weapon and dismissing that count of the indictment, and otherwise affirmed. In the case at bar, the possession and use of a knife by the defendant during the commission of the burglary constituted a lesser offense included within a greater offense and must therefore be considered as an inclusory concurrent count (CPL 300.30, subd 4). A verdict of guilty as to the greater count of burglary is deemed a dismissal of the lesser count of possession of a weapon (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848; People v Pyles, 44 AD2d 784), and we have modified the judgment accordingly. We have reviewed the other points raised by the appellant and found them to be without merit. Concur—Kupferman, J. P., Silverman, Lane and Nunez, JJ.