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.