People v. Sydnor

254 A.D.2d 508, 679 N.Y.S.2d 832, 1998 N.Y. App. Div. LEXIS 11240

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1998
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 29, 1997, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the third degree, and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’s contention that the trial court erred in failing to impose a Rosario sanction on the People is unpreserved for appellate review (see, CPL 470.05 [2]; People v Rogelio, 79 NY2d 843; People v Johnson, 167 AD2d 422). In any event, the lost photograph of the defendant’s identification card and the attached subject data sheet which listed his pedigree did not constitute Rosario material (see, CPL 240.45 [1]; People v Rosario, 9 NY2d 286, cert denied 386 US 866; People v Brock, 246 AD2d 406; People v Wilson, 210 AD2d 520).

However, as correctly conceded by the People, the defendant’s conviction for criminal possession of a controlled substance in the third degree was a concurrent inclusory count of one of the counts of criminal sale of a controlled substance in the third degree (see, People v Sea, 49 NY2d 1032; People v Robinson, 45 NY2d 448; People v Pinto, 235 AD2d 261; People v Lee, 196 AD2d 509). Therefore, the defendant’s conviction of criminal possession of a controlled substance in the third degree must be vacated and that count of the indictment dismissed. Joy, J. P., Friedmann, Krausman and Luciano, JJ., concur.