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ON APPEAL, CONVICTIONS FOR “INCLUSORY, CONCURRENT COUNTS” WERE VACATED, AND SEPARATE CONVICTIONS FOR A “CONTINUING OFFENSE” WERE VACATED (SECOND DEPT). ​

The Second Department determined several inclusory concurrent counts and certain convictions for a “continuing offense” must be vacated:

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 five counts of criminal possession of a weapon in the second degree … and three counts of criminal possession of a firearm … . Because the counts charging criminal possession of a weapon in the second degree and criminal possession of a firearm are inclusory concurrent counts, the convictions of criminal possession of a firearm … must be vacated … .

… The defendant’s convictions of criminal possession of a weapon in the second degree under counts 4 and 10 of the indictment subjected the defendant to double jeopardy. “An indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” … . Here, the indictment charged the defendant with three separate counts of criminal possession of a weapon in the second degree under Penal Law § 265.03(3) for the uninterrupted possession of single weapon. Such possession was continuous and “‘constituted a single offense for which he could be prosecuted only once'” … . As such, we vacate the defendant’s convictions of criminal possession of a weapon in the second degree under counts 4 and 10 of the indictment, vacate the sentences imposed thereon, and dismiss those counts of the indictment. People v Stewart, 2025 NY Slip Op 06737, Second Dept 12-3-25

Practice Point: Here criminal possession of firearm convictions were vacated as “inclusory, concurrent counts” of criminal possession of a weapon second degree.

Practice Point: Here three criminal possession of a weapon convictions related to a single “continuing offense” of criminal possession of a weapon. Two of the convictions were therefore vacated.

 

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