People v. Then — 254 A.D.2d 206

Majority

p. 206

The People of the State of New York, Respondent, v Jose Then, Also Known as Jose Alfredo, Appellant.

[679 NYS2d 570]

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered January 24, 1997, convicting defendant, upon his guilty plea, of attempted criminal possession of a controlled substance in the third degree and criminal possession of a weapon in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 2 to 4 years and 3V2 to 7 years, respectively, unanimously modified, on the law, to the extent of vacating defendant’s conviction for criminal possession of a weapon in the third degree, and otherwise affirmed.

Judgment, same court and Justice, rendered January 24, 1997, convicting defendant, upon his guilty plea, of attempted criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

p. 207

As the People correctly concede, since the count charging criminal possession of a weapon in the third degree had been dismissed and never reinstated, any further prosecution of that charge was barred, requiring that we vacate defendant’s conviction on that charge. Concur — Sullivan, J. P., Rosenberger, Nardelli, Williams and Andrias, JJ.