People v. Estrada

285 A.D.2d 612, 728 N.Y.S.2d 378, 2001 N.Y. App. Div. LEXIS 7585

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), rendered June 4, 1998, convicting him of criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree, criminal possession of a weapon in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Upon the exercise of our factual review power, we are satisfied that the verdict of guilt on the charge of criminal possession of a weapon in the second degree was not against the weight of the evidence (see, CPL 470.15 [5]).

However, as the People correctly concede, under the circumstances of this case, criminal possession of a controlled substance in the seventh degree is a lesser-included offense of the crime of criminal possession of a controlled substance in the fourth degree. Accordingly, the defendant’s conviction on that lesser-included offense must be vacated (see, People v Cureton, 268 AD2d 532; People v Queen, 258 AD2d 480). Santucci, J. P., Goldstein, Florio and Crane, JJ., concur.