People v. Weathersby

376 N.E.2d 908, 44 N.Y.2d 686, 44 N.Y. 686, 405 N.Y.S.2d 436, 1978 N.Y. LEXIS 1904

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Inasmuch as the offenses of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree are both class A-III felonies subject to the same penal sanctions, the former cannot be a lesser inclusory concurrent count with respect to the latter within the meaning of CPL 300.40 (subd 3, par [b]). CPL 300.40 makes provision with respect to lesser and greater counts but not for equivalent counts. Nor do we find any merit to defendant’s contention that there is insufficient evidence to sustain his convictions.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.