Opinion
August 2, 1993
Appeal from the Supreme Court, Kings County (Demarest, J.).
Ordered that the judgment is modified, on the law, by reversing the defendant's 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.
Inasmuch as both the criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree convictions were based upon the defendant's sale and possession of the same vial of crack cocaine, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent offense, which, under the circumstances, should be dismissed pursuant to CPL 300.40 (3) (b) (see, People v Grier, 37 N.Y.2d 847; People v Butler, 192 A.D.2d 543; People v Gamble, 182 A.D.2d 638; People v Velez, 150 A.D.2d 514).
However, we disagree with the defendant's contention that his conviction of criminal possession of a controlled substance in the fourth degree should be reversed, and that count of the indictment dismissed as a lesser inclusory concurrent count of the criminal possession of a controlled substance in the third degree. The defendant's possession of the 69 vials of crack cocaine formed the basis for the criminal possession of a controlled substance in the third degree charge contained in count four of the indictment, as well as the criminal possession of a controlled substance in the fourth degree charge contained in count five. However, the criminal possession of a controlled substance in the third degree count has no weight requirement, but requires an "intent to sell". On the other hand, the criminal possession of a controlled substance in the fourth degree charge has no intent to sell requirement, but contains a weight requirement. Thus, it is possible to commit one offense without concomitantly committing the other (see, People v Wheeler, 67 N.Y.2d 960; People v Glover, 57 N.Y.2d 61; People v Moyer, 27 N.Y.2d 252; People v Chapman, 60 A.D.2d 584), and criminal possession of a controlled substance in the fourth degree is not a lesser included offense of criminal possession of a controlled substance in the third degree.
We find that the sentence imposed on the defendant was not excessive (see, People v Suitte, 90 A.D.2d 80). Bracken, J.P., Balletta, Ritter and Santucci, JJ., concur.