People v. Crumbs

—Judgment, Supreme Court, New York County (Edward McLaughlin, J.), rendered November 14, 2000, as amended January 26, 2001, convicting defendant, after a jury trial, of assault in the first and second degrees, and sentencing her to concurrent terms of six and five years, respectively, unanimously modified, on the law, to the extent of vacating the second-degree assault conviction and dismissing that count, and otherwise affirmed. The court properly exercised its discretion in permitting the People to introduce rebuttal evidence since it was offered to disprove affirmative assertions made by defendant in her direct examination (see, People v Harrington, 262 AD2d 220, lv denied 94 NY2d 823; see also, People v Alvino, 71 NY2d 233, 248; CPL 260.30 [7]). The officer’s rebuttal testimony went into greater detail than his direct testimony and refuted specific claims made on defendant’s case. Accordingly, the rebuttal was not a mere repetition of a portion of the People’s direct case. As the People commendably concede, the second-degree assault count should have been dismissed as an inclusory concurrent count of the first-degree assault count (see, CPL 300.40 [3] [b]). We perceive no basis for a reduction of sentence. Concur— Saxe, J.P., Sullivan, Lerner, Rubin and Friedman, JJ.