People v. Miranda

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

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.