People v. Harrison

136 A.D.2d 469

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 7, 1988
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Howard Bell, J.), rendered February 19, 1986, which convicted defendant, after a jury trial, of criminal sale of a controlled substance in the fifth degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, and sentenced him, on the felony conviction, as a second felony offender, to a prison term of 2 Vz to 5 years, and, on the two misdemeanor convictions, to prison terms of 1 year, all of the sentences to run concurrently, unanimously modified, on the law and the facts and as a matter of discretion, in the interest of justice, to dismiss the charges of criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree, and otherwise affirmed. The convictions resulted from the arrest of the defendant in the area of 17th Street and Sixth Avenue in New York County in a "buy-and-bust” operation by the police.

Although it is clear that the possession charges are not lesser included offenses of the sale charge (see, People v Teixeira, 101 AD2d 818 [2d Dept 1984]; People v Cogle, 94 AD2d 158 [3d Dept 1983]) and thus dismissal of the possessory charges is not required, the People concede that because the possessory charges flow from the sale charge, dismissal of the possessory charges is appropriate (see, People v Gaul, 63 AD2d 563 [1st Dept 1978]). Moreover, criminal possession of a controlled substance in the seventh degree is a lesser included offense of criminal possession of a controlled substance in the fifth degree and the former must be dismissed in view of the dismissal of the latter. (See, People v Holman, 117 AD2d 534 [1st Dept 1986]; People v Nickens, 121 AD2d 199 [1st Dept 1986].)

We have reviewed the other contentions of the defendant and find them to be without merit. Concur—Kupferman, J. P., Sullivan, Ross, Ellerin and Smith, JJ.