People v. Cruzado

65 A.D.2d 695, 409 N.Y.S.2d 742, 1978 N.Y. App. Div. LEXIS 13459

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered February 17, 1976, convicting defendant after a jury trial of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), and two counts of criminal possession of a controlled substance in the seventh degree (Penal Law, § 220.03), unanimously modified, on the law, to dismiss the third count, to wit, criminal possession of a controlled substance in the seventh degree, and otherwise affirmed. Defendant could not have committed the crime of criminal sale of a controlled substance in the third degree without also having committed the crime of criminal possession in the seventh degree, as the People concede. Where the verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greatest count is deemed a dismissal of the lesser count (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848; People v Gaul, 63 AD2d 563). We have examined the other points raised by appellant and find them without merit. Concur— Murphy, P. J., Silverman, Fein, Markewich and Sandler, JJ.