DECISION ORDER
ORDERED that the judgment is modified, on the law, by vacating the conviction of assault in the third degree, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The People correctly concede that assault in the third degree is a lesser-included offense of assault in the second degree. We thus vacate the conviction on that lesser-included offense (see People v. Cureton, 268 A.D.2d 532; People v. Queen, 258 A.D.2d 480). We need not vacate the sentence imposed on the conviction of that crime, as no sentence was imposed.
In view of the confusion over the trial court's charge and the possibility that the jury's verdict was either factually or legally repugnant, the trial court's clarification and re-submission of the counts to the jury was the proper remedial procedure (see CPL 310.50; People v. Salemmo, 38 N.Y.2d 357, 360-61).
The defendant's remaining contention is without merit.
RITTER, J.P., ALTMAN, S. MILLER and TOWNES, JJ., concur.