
    The People of the State of New York, Respondent, v Terrence Elbing, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 28, 1976, convicting him of attempted murder in the second degree, robbery in the first degree, and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of assault in the first degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The assault charge must he dismissed pursuant to CPL 300.40 (subd 3, par [b]). We have considered defendant’s other contentions and find them to be without merit. Damiani, J. P., Mangano, Rabin and Gulotta, JJ., concur.  