People v. Bertolino

55 A.D.2d 937, 390 N.Y.S.2d 649, 1977 N.Y. App. Div. LEXIS 10210

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1977
• Status: Published

Opinion

Appeal by defendant from two judgments of the Supreme Court, Kings County, both rendered October 23, 1974, convicting him, under Indictment No. 1110/74, of criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third and fifth degrees, and, under Indictment No. 1111/74, of criminally selling a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth and sixth degrees, upon a jury verdict, and imposing sentence. Judgments modified, on the law, by reversing the convictions of criminal possession of a controlled substance in the third and fifth degrees (under Indictment No. 1110/74) and criminal possession of a dangerous drug in the fourth and sixth degrees (under Indictment No. 1111/74), and the sentences imposed thereon, and the said counts of the respective indictments are dismissed. As so modified, judgments affirmed. The four drug possession counts are lesser included concurrent counts of the two counts charging sales by defendant. Accordingly, they should have been dismissed upon defendant’s convictions of criminal sale of a dangerous drug in the third degree and criminal sale of a controlled substance in the second degree (see CPL 300.40, subd 3, par [b]; People v Lee, 39 NY2d 388). We have considered defendant’s other arguments and find them to be without merit. Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.