
    The People of the State of New York, Respondent, v Luis Claramunt, Appellant.
   Judgment, Supreme Court, New York County (Carey, J.), rendered November 29, 1984, convicting defendant, upon a jury verdict, of assault in the second and third degrees and sentencing him to concurrent terms of imprisonment of from 2⅓ to 7 years and one year, respectively, unanimously modified, on the law, to reverse the conviction of assault in the third degree and dismiss said count and, except as thus modified, affirmed.

Defendant was convicted of both assault in the second degree for causing physical injury to the victim with a dangerous instrument (Penal Law § 120.05 [2]), and assault in the third degree for causing physical injury (Penal Law § 120.00 [1]). Since, as the People concede, assault in the third degree is a lesser included offense of assault in the second degree, the conviction of assault in the third degree should be vacated, and we modify accordingly.

We have examined defendant’s other contentions and find that they are without merit. Concur — Kupferman, J. P., Sullivan, Ross, Fein and Ellerin, JJ.  