People v. Hernandez

138 A.D.2d 326, 526 N.Y.S.2d 764, 1988 N.Y. App. Div. LEXIS 11228

Opinion

Upon remittitur from the Court of Appeals, judgment, Supreme Court, New York County (Frank J. Blangiardo, J.), rendered January 4, 1985, convicting defendant of criminal sale of a controlled substance in the third degree and one count each of criminal possession of a controlled substance in the third and seventh degrees and sentencing him to concurrent terms of imprisonment of from 5 to 10 years, 5 to 10 years and 1 year, respectively, unanimously modified, on the law, to the extent of reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence thereon, dismissing the underlying count, and, except as thus modified, affirmed.

We find that the conviction for simple possession should have been vacated and that charge dismissed as a lesser included offense, and modify accordingly. Concur—Kupferman, J. P., Sandler, Sullivan and Milonas, JJ.