
    First Department,
    April, 1975
    (April 3, 1975)
    The People of the State of New York, Respondent, v Efrain Santiago, Appellant.
   Judgment, Supreme Court, Bronx County, rendered on April 5, 1973, convicting defendant, after a jury trial, of the crimes of murder and possession of weapon as a misdemeanor and sentencing him to concurrent terms of from 18 years to life and one year respectively, unanimously modified, on the law, to the extent of reversing the conviction for possession of a weapon, vacating the sentence imposed thereon and dismissing that count of the indictment, and otherwise affirmed. On the facts in the record, possession of a weapon as a misdemeanor was a lesser inclusory count of murder. There was no proof of possession independent of the crime of murder. A conviction upon the higher offense is deemed a dismissal of the lesser offense submitted to the jury. CPL 300.40 (subd 3, par [b]) and the People so concede. Concur — Stevens, P. J., Kupferman, Capozzoli, Nunez and Lynch, JJ.  