People v. Troche

141 A.D.2d 377, 529 N.Y.S.2d 312, 1988 N.Y. App. Div. LEXIS 6782

Opinion

Judgment of the Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered September 10, 1986, which convicted defendant, after a bench trial, of criminal sale of a controlled substance in the third degree (Penal Law § 220.39), criminal possession of a controlled substance in the third degree (Penal Law § 220.16) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), and sentenced him to indeterminate terms of imprisonment of from IVi to 4Vi years on the third degree sale and possession counts, and to a definite term of one year on the seventh degree possession count, all sentences to run concurrently, unanimously modified, on the law, and as a matter of discretion in the interest of justice, to the extent of vacating the convictions for criminal possession of a controlled substance in the third and seventh degrees, and dismissing those counts of the indictment charging same, and is otherwise affirmed.

The People concede that seventh degree possession of a controlled substance is a lesser inclusory concurrent count of third degree possession of a controlled substance, and thus should have been dismissed as a matter of law (CPL 300.40 [3] [b]; People v Holman, 117 AD2d 534). And, while third degree possession is not a lesser inclusory concurrent count of third degree sale, the People also acknowledge that in the context of this case, a "buy-and-bust” operation by the police, where the possession count "flows directly” from the sale count, and where defendant was sentenced to identical concurrent terms on both counts, a dismissal of the possession count would affect nothing but the form of the judgment, and would be an appropriate exercise of discretion under CPL 300.40 (3) (a) (People v Gaul, 63 AD2d 563, lv denied 45 NY2d 780; People v Evans, 70 AD2d 816; People v Harrison, 139 AD2d 422). Concur — Sandler, J. P., Asch, Kassal, Rosenberger and Wallach, JJ.