PEOPLE v. ALLEN

As the People commendably concede, defendant could not be simultaneously convicted of assault in the first degree and the lesser included concurrent count of assault in the second degree. Upon defendant's conviction of assault in the first degree, the count of assault in the second degree ought to have been deemed dismissed (see, CPL 300.30, [4]; 300.40 [3] [b]; see also, People v Beatty, 134 A.D.2d 602; People v Ridout, 46 A.D.2d 643).

The other points raised on the appeal have been considered and found to be without merit.

Concur — Murphy, P.J., Kupferman, Asch, Kassal and Wallach, JJ.