People v. Brigantti

137 A.D.2d 445, 524 N.Y.S.2d 360, 1988 N.Y. App. Div. LEXIS 1471

Opinion

Judgment of the Supreme Court, Bronx County (Martin B. Klein, J.), rendered March 15, 1985, convicting defendant, after trial by jury, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, respectively, to two concurrent terms of imprisonment of from 6 to 12 years and to a definite term of one year, to be served concurrently, is unanimously modified, on the law, to the extent of vacating defendant’s conviction of criminal possession of a controlled substance in the seventh degree and dismissing that count, and otherwise affirmed.

Under the facts herein, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent count of criminal possession of a controlled substance in the third degree. Therefore, as the People concede, it should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Holman, 117 AD2d 534).

We have examined the other contentions raised by defendant and find them to be without merit. Concur—Sandler, J. P., Ross, Asch, Milonas and Rosenberger, JJ.