Opinion
October 31, 1994
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the third degree imposed under the second count of the indictment, vacating the sentence imposed thereon, and dismissing the second count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the People (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
However, the defendant is correct in his assertion that the second count in the indictment, criminal possession of a controlled substance in the third degree, must be dismissed. The convictions for criminal possession of a controlled substance in the first degree under the first count of the indictment (see, Penal Law § 220.21; possession of more than four ounces) and criminal possession of a controlled substance in the third degree under the second count of the indictment (Penal Law § 220.16; possession of more than half an ounce) were based upon the same cocaine. Thus, that count of criminal possession of a controlled substance in the third degree was an inclusory concurrent offense which, under the circumstances, should be dismissed (see, CPL 300.40 [b]). However, the remaining two counts of criminal possession of a controlled substance in the third degree (see, Penal Law § 220.16) were not lesser-included offenses of criminal possession of a controlled substance in the first degree, since those counts included an "intent to sell" requirement, but had no weight requirement (see, People v. Lee, 196 A.D.2d 509).
The defendant's contention that the trial court erred by refusing to give a missing witness charge with respect to two police officers is unpreserved for appellate review, as the defendant cannot rely on the request of a codefendant (see, People v. Buckley, 75 N.Y.2d 843; People v. Woodside, 204 A.D.2d 168). In any event, the trial court properly denied the request on the ground that the testimony would have been cumulative (see, People v. Brown, 204 A.D.2d 654; People v. Tate, 199 A.D.2d 291).
The sentence imposed was not excessive (see, People v. Suitte, 90 A.D.2d 80). O'Brien, J.P., Pizzuto, Altman and Hart, JJ., concur.