People v. Rivera

237 A.D.2d 540, 656 N.Y.S.2d 894, 1997 N.Y. App. Div. LEXIS 2834

Opinion

Appeal by the defendant from a judgment of the County Court, Westchester County (Murphy, J.), rendered August 3, 1995, convicting him of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, 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.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

The defendant is correct in his assertion that his conviction of the lesser-inclusory count of criminal possession of a controlled substance in the seventh degree must be dismissed (see, CPL 300.40 [3] [b]; People v Hammond, 220 AD2d 684).

The defendant’s sentence was neither harsh nor excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Thompson, J. P., Pizzuto, Joy and Luciano, JJ., concur.