People v. Lara

77 A.D.2d 517, 429 N.Y.S.2d 1018, 1980 N.Y. App. Div. LEXIS 12225

Opinion

Judgment of conviction, Supreme Court, New York County, rendered March 22, 1977, modified, on the law and the facts, to vacate and dismiss the conviction of possession of a controlled substance under the third count of the indictment, and otherwise affirmed. While the trial court properly instructed the jury not to consider the third count, possession, included under the more serious first count of sale, if they did convict of the more serious count, and while the jury, convicting of the first count, rendered no verdict on the third, the clerk, announced in error at sentence that there had been a conviction of the third count. The court then sentenced on that count, to run concurrently with sentence under the first. The error should be corrected, as the District Attorney concedes, by vacatur of the recorded conviction and dismissal of the third count. Concur—Kupferman, J. P., Birns, Sandler, Ross and Markewich, JJ., concur.