People v. Oglesby

245 A.D.2d 469, 666 N.Y.S.2d 466, 1997 N.Y. App. Div. LEXIS 14127

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1997
• Status: Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Cirigliano, J.), rendered April 5, 1996, 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, after a nonjury trial, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction for 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.

Inasmuch as the convictions for criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree were based on the possession of the same glassine envelope of crack cocaine, the latter charge constitutes an inelusory count of the former. We therefore reverse the conviction of criminal possession of a controlled substance in the seventh degree and dismiss that count (see, GPL 300.40 [3] [b]; People v Brown, 198 AD2d 291).

The defendant’s waiver of a jury trial was an informed and voluntary decision (see, People v Ford, 222 AD2d 451; People v Livingston, 184 AD2d 529).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Miller, Ritter and Florio, JJ., concur.