You are here: / / CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF...

CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).

The Second Department determined criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts:

CPL 300.30(4) provides that “[c]oncurrent 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 300.40(3)(b) provides, in relevant part, that with respect to inclusory concurrent counts, “[a] verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted” … .

Here, the defendant was convicted of criminal possession of a weapon in the second degree under Penal Law § 265.03(1)(b) and criminal possession of a firearm … . As the People correctly concede, because the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Harvey, 2023 NY Slip Op 01099, Second Dept 3-1-23

Practice Point: Criminal possession of a weapon second degree and criminal possession of a firearm are inclusory concurrent counts. The criminal possession of a firearm conviction and sentence were vacated.

 

You might also like
DEFENDANT DID NOT ELIMINATE QUESTIONS OF FACT CONCERNING WHETHER IT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS ESCALATOR SLIP AND FALL CASE, ANY CONFLICT IN PLAINTIFF’S TESTIMONY DID NOT RENDER IT INCREDIBLE AS A MATTER OF LAW, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ABUTTING PROPERTY OWNER IS NOT RESPONSIBLE FOR TREE WELLS IN CITY SIDEWALKS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
IN A REAR-END COLLISION CASE, THE ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY IS NOT SUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION (SECOND DEPT).
Failure to Give the Jury Instruction on Intoxication Required Reversal
Affirmative Defense Waived by Absence from Initial Answer May Be Included in Amended Answer.
DEFENDANTS, OPERATORS OF A VIRGINIA HOTEL WHERE PLAINTIFF WAS INJURED IN A SHOWER, DEMONSTRATED THE ABSENCE OF BUSINESS TIES TO NEW YORK, THE FACT THAT NEW YORKERS CAN MAKE RESERVATIONS THROUGH A WEBSITE IS NOT ENOUGH.
Delay In Seeking DNA Sample Contributed to Violation of Speedy Trial Statute—Indictment Dismissed
PLAINTIFF, A HOMEOWNER WHOSE COMPANY HIRED DEFENDANT SUBCONTRACTOR TO WORK AT PLAINTIFF’S HOME, WAS A PROPER PLAINTIFF UNDER LABOR LAW 240 (1) AND 241 (6), QUESTIONS OF FACT WHETHER DEFENDANT WAS IN CONTROL OF THE WORK SITE AND HAD BEEN DELEGATED SITE SAFETY RESPONSIBILITIES (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CONCLUSORY AND SPECULATIVE ALLEGATIONS PLAINTIFF WOULD NOT HAVE LOST ITS DISADVANTAGED... ALTHOUGH DEFENDANT AND DEFENDANT’S SISTER TOLD THE COMPLAINANT TO HAVE...