People v. Outlaw

63 A.D.2d 572, 404 N.Y.S.2d 613, 1978 N.Y. App. Div. LEXIS 11400

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1978
• Status: Published

Opinion

Judgment, Supreme Court, New York County, rendered December 1, 1975, convicting defendant after jury trial of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39), criminal possession of a controlled substance in the third degree (Penal Law, § 220.16), and criminal possession of a controlled substance in the seventh degree (Penal Law, § 220.03), unanimously modified, on the law, and as a matter of discretion and in the interest of justice, to the extent of reversing the conviction for criminal possession of a controlled substance in the third and seventh degree and dismissing counts 2 and 3 of the indictment, and otherwise affirmed. The defendant was convicted of the three crimes listed above in connection with a single sale of heroin that occurred on March 28, 1974. He was sentenced to concurrent one year to life sentences in connection with the first two charges, and to time served with regard to the third. The conviction for criminal possession of a controlled substance in the , seventh degree (simple possession), a lesser included offense, must be dismissed for familiar reasons. (CPL 300.40, subd 3, par [b]; People v Pyles, 44 AD2d 784.) Criminal possession of a controlled substance with intent to sell (Penal Law, § 220.16) is a noninclusory concurrent count. (CPL 300.40, subd 3, par [a]). Its relationship to the criminal sale charge is so close that we are of the view that this count likewise should be dismissed in the exercise of discretion for reasons set forth in detail in People v Gaul, 63 AD2d 563). Concur—Lupiano, J. P., Birns, Lane, Markewich and Sandler, JJ.