People v. Marrero

182 A.D.2d 778

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1992
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (DeLury, J.), rendered June 18, 1990, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant was convicted of both criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. However, as conceded by the People, the latter crime is a lesser-included offense of the former, which, under the circumstances of this case, should have been dismissed pursuant to CPL 300.40 (3) Ob) (see, People v Vargas, 155 AD2d 565; People v Rodriguez, 126 AD2d 681).

The defendant’s contention that the court improperly instructed the jury on the procedure for obtaining a search warrant is not preserved for appellate review, as no objection was made to that instruction (see, CPL 470.05 [2]).

The sentence imposed was not unduly harsh or excessive (see, People v Suitte, 90 AD2d 80). Harwood, J. P., Balletta, Rosenblatt and Copertino, JJ., concur.