Opinion
October 12, 1978
Judgment, Supreme Court, New York County, rendered December 17, 1974, convicting defendant after jury trial of criminal sale of a controlled substance, first degree, and criminal possession of a controlled substance, first and third degrees, unanimously modified, on the law, to dismiss the count of criminal possession of a controlled substance, third degree, and otherwise affirmed. On the facts of this case, conviction of the counts charging sale and possession with intent to sell, included the lesser count of possession, third degree. As the People concede, the lesser count should be dismissed as it was in the case of the codefendant (People v Santiago, 55 A.D.2d 584, affd 44 N.Y.2d 924). We have examined the other contentions advanced by appellant and find them without merit.
Concur — Murphy, P.J., Lupiano, Evans, Lane and Sullivan, JJ.