March 2, 1989
Appeal from the Supreme Court, New York County (James J. Leff, J.).
The People agree that all of the charges against defendant arose from a single shot fired by him, which entered the cheek of one victim, passed through his neck and entered the left shoulder of the second victim, and that, therefore, the sentences imposed should run concurrently rather than consecutively. (Penal Law § 70.25; People v. Brathwaite, 63 N.Y.2d 839, 843.) The People also concede that the count charging defendant with criminal possession of a weapon in the second degree should have been dismissed since it was an inclusory concurrent count of the charge of criminal use of a firearm in the first degree, and under the circumstances of this case defendant could not have committed the crime of criminal use of a firearm without committing the crime of criminal possession of the same firearm. (CPL 300.30; 300.40  [b]; People v. Grier, 37 N.Y.2d 847.) We have considered defendant's other contentions and find them without merit. The judgment is modified accordingly.
Concur — Kupferman, J.P., Carro, Milonas, Rosenberger and Smith, JJ.