People v. Snyder

154 A.D.2d 269, 547 N.Y.S.2d 218, 1989 N.Y. App. Div. LEXIS 12638

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 17, 1989
• Status: Published

Opinion

— Judgment, Supreme Court, New York County (Jay Gold, J.), rendered April 3, 1986, which convicted defendant, after jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree and sentenced him to concurrent 4Ví¡-to-9-year and one-year prison terms, respectively, unanimously modified, on the law, and as a matter of discretion in the interest of justice, to reverse the conviction for criminal possession of a controlled substance in the seventh degree, and dismiss that charge, and otherwise affirmed.

Defendant’s conviction arises from his sale of one glassine envelope of heroin to an undercover police officer.

Although we have repeatedly held that the possession charge is not a lesser included offense of the sale charge, in cases, such as here, where the possession charge flows directly from the sale charge, dismissal of the possession charge is appropriate. (See, e.g., People v Miranda, 151 AD2d 321, and cases cited therein.) Accordingly, as the People concede, we modify the judgment to dismiss the charge of criminal possession of a controlled substance in the seventh degree.

We have examined the other points raised by the defendant on this appeal and find them to be without merit. Concur— Kupferman, J. P., Carro, Rosenberger, Ellerin and Smith, JJ.