
    The People of the State of New York, Respondent, v John Walsh, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 20, 1974, convicting him of assault in the first degree and possession of weapons, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of possession of weapons, etc., as a felony, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Under the facts of this case, appellant’s conviction of the crime of assault in the first degree mandates dismissal of the lesser included concurrent count of possession of weapons, etc., as a felony (see CPL 300.40; People v Garcia, 53 AD2d 592). Respondent concedes this in its brief. Although appellant argues that his motion for a mistrial based upon a deadlocked jury is distinguishable from one made during the course of a trial, the fact is that appellant’s motion aborted any further deliberations on the unresolved counts. Under the circumstances, appellant cannot also insist that a retrial of the unresolved counts was barred by CPL 310.70, as it read at the time the crimes charged were committed "and during the trial thereon. We do not find the sentence on the assault conviction to be excessive in view of the circumstances attendant upon the assault and appellant’s prior criminal record. We have examined appellant’s other contentions and find them to be without merit. Cohalan, Acting P. J., Margett, Damiani, Rabin and Hawkins, JJ., concur.  