People v. Miranda

151 A.D.2d 321, 543 N.Y.S.2d 904, 1989 N.Y. App. Div. LEXIS 7529

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1989
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), entered June 16, 1987, which convicted defendant, after a jury trial, of the crimes of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), and criminal possession of a controlled substance in the third degree (Penal Law § 220.16), and sentenced him, as a second felony offender, to two concurrent indeterminate prison terms of 7 to 14 years, is unanimously modified, on the law, on the facts, and as a matter of discretion in the interest of justice, to dismiss the charge of criminal possession of a controlled substance in the third degree, and except as thus modified, otherwise affirmed.

Defendant’s convictions resulted from his arrest for a single sale of two glassine envelopes, which contained heroin, to an undercover police officer for $30.

Although we have repeatedly held that the possession charge is not a lesser included offense of the sale charge (People v Perez, 139 AD2d 460, 461 [1st Dept 1988]; People v Harrison, 136 AD2d 469, 470 [1st Dept 1988]), the People concede that since the possession charge flows from the sale charge, dismissal of the possession charge is appropriate (People v Gaul, 63 AD2d 563 [1st Dept 1978], lv denied 45 NY2d 780 [1978]).

Accordingly, we modify the judgment to dismiss the charge of criminal possession of a controlled substance in the third degree.

We have considered the other points presented by defendant, and find them to be without merit. Concur — Sullivan, J. P., Ross, Asch, Rosenberger and Ellerin, JJ.