Opinion
January 22, 1982
Appeal from the Jefferson County Court, Aylward, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Schnepp, JJ.
Judgment unanimously modified and, as modified, affirmed, in accordance with the following memorandum: Defendant, charged with four counts of assault, second degree, arising out of an incident in which he and three friends beat two men into unconsciousness, appeals from his conviction after a jury trial of two counts of assault, second degree (Penal Law, § 120.05, subd 1), and one count of assault, third degree (Penal Law, § 120.00, subd 1). He argues that his conviction of assault, second degree, with respect to one victim under Count No. 3 of the indictment is repugnant to his acquittal of assault, third degree (Penal Law, § 120.00, subd 1), with respect to the same victim, submitted as a lesser included offense of assault, second degree (Penal Law, § 120.05, subd 2), under Count No. 4 of the indictment. Defense counsel, by failing to raise this issue prior to the discharge of the jury, did not preserve the question for appellate review (see Barry v. Manglass, 55 N.Y.2d 803; People v. Stahl, 53 N.Y.2d 1048). We find sufficient evidence to support the two convictions of assault, second degree. Defendant's conviction of assault, third degree, under Count No. 2 of the indictment is vacated and that count dismissed as an inclusory concurrent count of assault, second degree, under Count No. 1 (see CPL 300.40, subd 3, par [b]; People v. Ridout, 46 A.D.2d 643). There is no merit to defendant's contention that the court abused its discretion in imposing sentence.