People v. Roman , 696 N.Y.S.2d 685 ( 1999 )

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Dufficy, J.), rendered November 20, 1990, convicting him of murder in the second degree, attempted murder in the second degree, burglary in the first degree (two counts), assault in the first degree (two counts), and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the first degree under the eighth count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt.

As correctly’ conceded by the People, the eighth count of the indictment for assault in the first degree with intent to cause serious physical injury constituted a concurrent inclusory count of the conviction of attempted murder in the second degree (see, People v Oglesby, 84 AD 2d 541). Thus, the conviction therefor must be vacated and that count must be dismissed.

The sentence imposed on the remaining counts was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are without merit. Thompson, J. P., Friedmann, Schmidt and Smith, JJ., concur.