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PEOPLE v. WARDELL

46 A.D.2d 856 (1974)

The People of the State of New York, Respondent, v. Aaron Wardell, Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

December 3, 1974

Assault in the third degree should be considered as an "inclusory concurrent count" of assault in the first degree (CPL 300.30, subd. 4). A verdict of guilty on the greater of two or more inclusory concurrent counts of an indictment is deemed a dismissal of every lesser count submitted (CPL 300.40, subd. 3, par. [b]). Hence the verdict of guilty on the assault in the first degree count must be deemed a dismissal of the inclusory...

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