People v. Nickens

Appellate Division of the Supreme Court of New York

People v. Nickens

121 A.D.2d 199, 503 N.Y.S.2d 25, 1986 N.Y. App. Div. LEXIS 58211

Appellate Division of the Supreme Court of the State of New York·Decided June 5, 1986·Published·Cited by 6 cases

Opinion

Judgment, Supreme Court, New York County (A. Williams, J.), rendered January 31, 1984, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees and sentencing him to an indeterminate term of 4½ to 9 years on the third degree count and to a concurrent definite term of one year on the seventh degree count, unanimously modified, on the law, to reverse the conviction of criminal possession of a controlled substance in the seventh degree and to vacate the one-year sentence imposed thereon, and otherwise affirmed.

A police officer using binoculars observed defendant delivering glassine envelopes containing a white powdery substance to two persons in exchange for money. Defendant secreted a number of such envelopes, held together with a rubber band, behind the phone in a nearby telephone booth. After arresting defendant, the backup officer found 10 glassine envelopes [200]*200containing cocaine inside a small circular hole near the top of the phone booth.

This evidence was sufficient to support defendant’s conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), i.e., possession with intent to sell.

However, the court erred in not dismissing the count charging criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). As the District Attorney properly concedes, criminal possession of a controlled substance in the seventh degree is an inclusory concurrent count (CPL 300.30 [4]) of criminal possession of a controlled substance in the third degree, of which defendant was also convicted. As such, the inclusory count should have been dismissed (CPL 300.40 [3] [b]; People v Williams, 67 AD2d 265, affd 50 NY2d 996; People v Gaul, 63 AD2d 563). Accordingly, the conviction of criminal possession of a controlled substance in the seventh degree should be reversed, and the one-year sentence vacated. Concur — Sullivan, J. P., Asch, Fein, Kassal and Ellerin, JJ.

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Judgment, Supreme Court, New York County (A. Williams, J.), rendered January 31, 1984, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees and sentencing him to an indeterminate term of 4½ to 9 years on the third degree count and to a concurrent definite term of one year on the seventh degree count, unanimously modified, on the law, to reverse the conviction of criminal possession of a controlled substance in the seventh degree and to vacate the one-year sentence imposed thereon, and otherwise affirmed.

A police officer using binoculars observed defendant delivering glassine envelopes containing a white powdery substance to two persons in exchange for money. Defendant secreted a number of such envelopes, held together with a rubber band, behind the phone in a nearby telephone booth. After arresting defendant, the backup officer found 10 glassine envelopes [200]*200containing cocaine inside a small circular hole near the top of the phone booth.

This evidence was sufficient to support defendant’s conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), i.e., possession with intent to sell.

However, the court erred in not dismissing the count charging criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). As the District Attorney properly concedes, criminal possession of a controlled substance in the seventh degree is an inclusory concurrent count (CPL 300.30 [4]) of criminal possession of a controlled substance in the third degree, of which defendant was also convicted. As such, the inclusory count should have been dismissed (CPL 300.40 [3] [b]; People v Williams, 67 AD2d 265, affd 50 NY2d 996; People v Gaul, 63 AD2d 563). Accordingly, the conviction of criminal possession of a controlled substance in the seventh degree should be reversed, and the one-year sentence vacated. Concur — Sullivan, J. P., Asch, Fein, Kassal and Ellerin, JJ.

People v. Nickens, 121 A.D.2d 199, 503 N.Y.S.2d 25, 1986 N.Y. App. Div. LEXIS 58211 (N.Y. Ct. App. 1986).

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Opinion

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