People v. Perez

136 A.D.2d 467, 1988 N.Y. App. Div. LEXIS 27, 523 N.Y.S.2d 106

Opinion

—Judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on March 27, 1986, which convicted defendant, following a jury trial, of criminal sale of a controlled substance in the fifth degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree and sentenced him, as a predicate felon, to two concurrent indeterminate terms of imprisonment of from 2 to 4 years to run concurrently with a determinate term of 1 year, is unanimously modified, on the law, to the extent of reversing the conviction for criminal possession of a controlled substance in the seventh degree, vacating the sentence thereon, and otherwise affirmed. Defendant correctly asserts, and the People agree, that the offense of criminal possession of a controlled substance in the seventh degree is an inclusory concurrent offense of the crime of criminal possession of a controlled substance in the fifth degree, and, therefore, his conviction on the former count must be reversed (see, CPL 300.40 [3] [b]; People v Holman, 117 AD2d 534). We have considered defendant’s other contentions and find them to be without merit. Concur—Ross, J. P., Asch, Milonas and Rosenberger, JJ.