Opinion
Argued November 2, 2000.
July 30, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered May 21, 1997, convicting him of criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence. By decision and order of this court dated March 19, 2001, the appeal was held in abeyance and the matter was remitted to the Supreme Court, Queens County, to hear and report on the defendant's pro se motion pursuant to CPL 30.30 to dismiss the indictment, either addressing the motion on the merits, or stating its reasons for refusing to address it (see, People v. Delgado, 281 A.D.2d 556). The Supreme Court, Queens County, has now filed its report.
Andrew C. Fine, New York, N.Y. (Paul Wiener of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and Donna Aldea of counsel; Lorrie A. Zinno on the brief), for respondent.
Before: LAWRENCE J. BRACKEN, P.J., CORNELIUS J. O'BRIEN, FRED T. SANTUCCI, LEO F. McGINITY, JJ.
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court, Queens County (Schulman, J.), providently exercised its discretion in declining to entertain his pro se motion pursuant to CPL 30.30 to dismiss the indictment. The record supports the Supreme Court's conclusion that the defendant's trial counsel declined to adopt the pro se motion. Where, as here, a defendant is represented by counsel, the decision whether to entertain a pro se motion is a matter committed to the sound discretion of the Supreme Court (see, People v. Rodriguez, 95 N.Y.2d 497, 502).
The Supreme Court's Sandoval ruling (see, People v. Sandoval, 34 N.Y.2d 371) was a provident exercise of discretion (see, People v. Kelland, 208 A.D.2d 954; People v. Lowenstein, 203 A.D.2d 304).
However, as correctly conceded by the People, the defendant's conviction of criminal possession of a controlled substance in the seventh degree must be vacated and that count dismissed as a lesser-included offense (see, CPL 1.20, 300.40[b]; People v. Hammond, 220 A.D.2d 684).
The defendant's remaining contention is without merit.
BRACKEN, P.J., O'BRIEN, SANTUCCI and McGINITY, JJ., concur.