People v. Victorio

Appellate Division of the Supreme Court of New York

People v. Victorio

133 A.D.2d 1, 518 N.Y.S.2d 354, 1987 N.Y. App. Div. LEXIS 49558

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 6, 1987

StatusPublished

This text of 133 A.D.2d 1 (People v. Victorio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Victorio, 133 A.D.2d 1, 518 N.Y.S.2d 354, 1987 N.Y. App. Div. LEXIS 49558 (N.Y. Ct. App. 1987).

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Opinion

Judgement, Supreme Court, New York County (James J. Leff, J.), rendered May 28, 1985, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees and sentencing him as a predicate felon to two concurrent indeterminate terms of imprisonment of from 4 Vi to 9 years and one definite term of 6 months, respectively, unanimously modified, on the law, to vacate the conviction of criminal possession of a controlled substance in the seventh degree and to dismiss the underlying charge (count three), and, except as thus modified, affirmed.

As the People concede, criminal possession of a controlled substance in the seventh degree, as charged in this case, is an inclusory concurrent offense of criminal possession of a controlled substance in the third degree. (CPL 1.20 [37]; 300.30 [4].) Thus, the conviction of criminal possession of a controlled [2]*2substance in the seventh degree must be vacated and the underlying charge dismissed. (CPL 300.40 [3] [b]; People v Holman, 117 AD2d 534.)

We have examined defendant’s other points and find that they are without merit. Concur—Murphy, P. J., Sullivan, Asch, Rosenberger and Wallach, JJ.

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Judgement, Supreme Court, New York County (James J. Leff, J.), rendered May 28, 1985, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees and sentencing him as a predicate felon to two concurrent indeterminate terms of imprisonment of from 4 Vi to 9 years and one definite term of 6 months, respectively, unanimously modified, on the law, to vacate the conviction of criminal possession of a controlled substance in the seventh degree and to dismiss the underlying charge (count three), and, except as thus modified, affirmed.

As the People concede, criminal possession of a controlled substance in the seventh degree, as charged in this case, is an inclusory concurrent offense of criminal possession of a controlled substance in the third degree. (CPL 1.20 [37]; 300.30 [4].) Thus, the conviction of criminal possession of a controlled [2]*2substance in the seventh degree must be vacated and the underlying charge dismissed. (CPL 300.40 [3] [b]; People v Holman, 117 AD2d 534.)

We have examined defendant’s other points and find that they are without merit. Concur—Murphy, P. J., Sullivan, Asch, Rosenberger and Wallach, JJ.

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Bluebook (online)

133 A.D.2d 1, 518 N.Y.S.2d 354, 1987 N.Y. App. Div. LEXIS 49558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-victorio-nyappdiv-1987.

Opinion

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