PEOPLE v. ROMAIN

ORDERED that the judgment is modified, on the law, by vacating the convictions of assault in the third degree under counts 10 through 13 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant failed to preserve his contention that the court gave an insufficient jury charge with respect to a witness's admission on the stand that he previously testified falsely ( see People v. Leisner, 73 N.Y.2d 140; People v. Whalen, 59 N.Y.2d 273; People v. Bishop, 144 A.D.2d 476). In any event, this contention is without merit because the charge, in its entirety, adequately conveyed to the jury that in assessing the witness's credibility, it must consider his admission that he lied under oath ( see People v. Coleman, 70 N.Y.2d 817; People v. Knight, 261 A.D.2d 487; People v. Wilson, 210 A.D.2d 363; People v. Owens, 202 A.D.2d 341; People v. Calderon, 182 A.D.2d 770). In addition, the defendant failed to preserve his contention regarding the propriety of the trial court's resubmission of the attempted assault in the first degree counts to the jury ( see CPL 470.05; People v. Flowers, 274 A.D.2d 523; People v. Alicea, 201 A.D.2d 575; People v. Quilles, 48 A.D.2d 933). In any event, the court's resubmission of those counts was justified by the jury's confusion and inconsistency with respect to the other assault counts ( see CPL 310.50; People v. Salemmo, 38 N.Y.2d 357; People v. Greenfield, 70 A.D.2d 662; People v. Quilles, supra).

As correctly conceded by the People, the counts of assault in the third degree constituted lesser-included offenses of the counts of assault in the second degree ( see People v. Rosales, 303 A.D.2d 769; People v. Jones, 277 A.D.2d 329). Thus, we vacate the convictions on those lesser-included offenses and the sentences imposed thereon and we dismiss those counts of the indictment ( see People v. Lee, 39 N.Y.2d 388, 390; People v. Garofalo, 192 A.D.2d 619; People v. Butler, 192 A.D.2d 543).

KRAUSMAN, J.P., SCHMIDT, COZIER and MASTRO, JJ., concur.