People v. Lugo

53 A.D.2d 650, 384 N.Y.S.2d 492, 1976 N.Y. App. Div. LEXIS 13377

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 1, 1974, convicting him of criminally selling a dangerous drug in the third degree, criminal possession of a dangerous drug in the fourth degree and criminal possession of a dangerous drug in the sixth degree (two counts), upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of (1) criminal possession of a dangerous drug in the fourth degree and (2) criminal possession of a dangerous drug in the sixth degree under the third count of the indictment, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. The findings of fact are affirmed. Under the facts of this case, defendant could not have committed criminally selling a dangerous drug in the third degree without also having committed criminal possession of a dangerous drug in the fourth and sixth degrees under the second and third counts of the indictment. The guilty verdict on the criminal sale count requires dismissal of the above-described criminal possession counts (see CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847). We have examined the other contentions raised by defendant and find them to be without merit. Latham, Acting P. J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.