
    The People of the State of New York, Respondent, v Derek Primus, Appellant.
    [648 NYS2d 15]
   —Judgment, Supreme Court, Bronx County (John Collins, J.), rendered June 17, 1993, convicting defendant, after a nonjury trial, of criminal possession of a weapon in the second and third degrees, and sentencing him, as a second felony offender, to concurrent terms of 71/2 to 15 years and 31/2 to 7 years, respectively, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction for criminal possession of a weapon in the third degree and dismissing that count of the indictment, and otherwise affirmed.

Defendant’s motion to dismiss the indictment was properly denied. Defendant did not specify which provision of the Criminal Procedure Law he was proceeding under when he moved to dismiss the indictment, and thus, he has not preserved the issue for review (People v Brown, 81 NY2d 798). Moreover, the motion was not made in writing and upon reasonable notice to the People (CPL 210.45 [1]; People v Fanelli, 92 AD2d 573). Furthermore, the motion was untimely and no good cause for the delay was established.

Since both weapon counts involved the same gun, we vacate defendant’s conviction of criminal possession of a weapon in the third degree and dismiss that count of the indictment in the interest of justice (People v Wade, 221 AD2d 276, lv denied 87 NY2d 926). Concur—Milonas, J. P., Rosenberger, Wallach, Kupferman and Tom, JJ.  