People v. Sutton

289 A.D.2d 424, 734 N.Y.S.2d 905, 2001 N.Y. App. Div. LEXIS 12177

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered February 28, 2000, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, the sentence is vacated, and the second count of the indictment charging the defendant with criminal possession of a controlled substance in the third degree is dismissed.

At his first trial, the defendant was convicted of, among other things, criminal possession of a controlled substance in the seventh degree, which is a lesser-included offense of criminal possession of a controlled substance in the third degree (see, People v Biggs, 280 AD2d 484; People v Owens, 249 AD2d 419, 420). As the People correctly concede, the conviction of criminal possession of a controlled substance in the seventh degree is deemed an acquittal of criminal possession in a controlled substance in the third degree (see, CPL 300.50 [4]), and “a retrial on the greater offense would be barred under settled double jeopardy principles” (People v Boettcher, 69 NY2d 174, 182; see, People v Helliger, 96 NY2d 462, 466). Accordingly, the defendant’s conviction of criminal possession of a controlled substance in the third degree must be reversed and the second count of the indictment dismissed. Altman, J. P., Smith, Adams and Prudenti, JJ., concur.