Opinion
March 17, 1986
Appeal from the Supreme Court, Kings County (Finnegan, J.).
Judgment modified, on the law, by vacating the sentence imposed on the charge of criminal possession of a controlled substance in the seventh degree and dismissing the fifth count of the indictment. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
Although two counts of criminal possession of a controlled substance in the seventh degree were submitted to the jury, they were submitted as lesser included offenses, and as the jury convicted the defendant of the greater offenses no verdict was returned on these counts. Thereafter, the court, upon motion, dismissed three counts of the indictment, including one of the seventh degree possession charges, leaving the other such charge under the fifth count of the indictment. As no verdict was rendered on the fifth count of the indictment, it was error for the court to impose a sentence thereon and it should have been dismissed (see, People v. Palmer, 104 A.D.2d 912).
The testimony of the police witness at the defendant's Mapp hearing concerning the content of the radio transmission received from the observing officer was sufficient to establish probable cause to arrest (see, People v. Petralia, 62 N.Y.2d 47, 50-52, cert denied 469 U.S. 852; People v. Figueroa, 111 A.D.2d 406). At best, the issue of the communication's reliability was raised only as a peripheral reference during argument at the end of the suppression hearing, which is insufficient to preserve the issue for appellate review (see, People v. Fenner, 61 N.Y.2d 971; People v. Bowdoin, 89 A.D.2d 986). The defendant's claim of error with respect to the court's interested witness charge similarly has not been preserved, the defendant having failed to either make an objection or request the additional charge he claims should have been given. Mangano, J.P., Gibbons, Lawrence and Kunzeman, JJ., concur.