People v. Reed

222 A.D.2d 459, 634 N.Y.S.2d 541, 1995 N.Y. App. Div. LEXIS 12526

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Koch, J.), rendered December 13, 1993, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

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

As correctly conceded by the People, criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree and, under the circumstances, the former count should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Brown, 198 AD2d 291; People v Gay, 190 AD2d 861). However, possession offenses related to controlled substances are not lesser-included offenses of those crimes prohibiting their sale. Therefore, the defendant’s conviction of criminal possession of a controlled substance in the third degree is not a lesser-included offense of criminal sale of controlled substance in the third degree subject to dismissal pursuant to CPL 300.40 (3) (b) (see, People v Byrd, 214 AD2d 581; People v Simms, 176 AD2d 833; People v Burton, 104 AD2d 655; People v Teixeira, 101 AD2d 818).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Sullivan, J. P., Thompson, Hart and Goldstein, JJ., concur.