People v. McKeller

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered July 11, 1995, convicting him of assault in the first degree, assault in the second degree, and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, on the law, by vacating the conviction for assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. The defendant’s contention that the prosecution’s summation constituted reversible error is unpreserved for appellate review (see, CPL 470.05 [2]; People v Medina, 53 NY2d 951; People v Udzinski, 146 AD2d 245), and we decline to reach it in the exercise of our interest of justice jurisdiction. The People correctly concede that the defendant’s conviction of assault in the second degree must be dismissed as an inclusory concurrent count of assault in the first degree (see, CPL 300.40 [3] [b]; Penal Law § 120.10 [1]; § 120.05 [2]; People v Garofalo, 192 AD2d 619). Copertino, J. P., Altman, Florio and Luciano, JJ., concur.