People v. Harley

56 A.D.2d 660, 392 N.Y.S.2d 50, 1977 N.Y. App. Div. LEXIS 10800

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1977
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 20, 1975, as modified by resentences imposed on June 3, 1975 and November 14, 1975, convicting him of criminal sale of a controlled substance in the second degree, and criminal possession of a controlled substance in the third and fifth degrees, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of criminal possession of a controlled substance in the third and fifth degrees, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The two possession counts are lesser included offenses of the count of sale of a controlled substance in the second degree. Upon conviction of the latter count, the two possession counts should have been dismissed (see People v Bertolino, 55 AD2d 937). The other contentions raised by the defendant are without merit. He was positively identified by two police officers who had purchased a substance containing methadone from him. Shortly after the defendant’s arrest, the "marked” buy money was recovered from his person. His guilt was established beyond a reasonable doubt and the statements made by the prosecutor during summation were not prejudicial (see People v De Cristofaro, 50 AD2d 994). Hopkins, Acting P. J., Cohalan, Damiani and Hawkins, JJ., concur.