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HERE THE ASSAULT SECOND DEGREE COUNT WAS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A POLICE OFFICER; THE ASSAULT SECOND CONVICTION WAS REVERSED AND THE COUNT DISMISSED; THE TERM “INCLUSORY CONCURRENT COUNT” WAS EXPLAINED (FOURTH DEPT).

The Fourth Department noted that assault in the second degree is an inclusory concurrent count of assault on a police officer and the assault second conviction must therefore be reversed and the count dismissed:

Counts are concurrent when “concurrent sentences only may be imposed in case of conviction thereon,” and such counts “are ‘inclusory’ when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater” (CPL 300.30 [3], [4]). Here, concurrent sentencing was required inasmuch as the same conduct formed the basis of each count … and, as charged here, assault in the second degree is a lesser included offense of assault on a police officer … . People v Felong, 2021 NY Slip Op 01901, Fourth Dept 3-26-21

 

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