Opinion
December 15, 1997
Appeal from the Supreme Court, Westchester County (Cirigliano, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for 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 the convictions for criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree were based on the possession of the same glassine envelope of crack cocaine, the latter charge constitutes an inclusory count of the former. We therefore reverse the conviction of criminal possession of a controlled substance in the seventh degree and dismiss that count ( see, CPL 300.40 [b]; People v. Brown, 198 A.D.2d 291).
The defendant's waiver of a jury trial was an informed and voluntary decision ( see, People v. Ford, 222 A.D.2d 451; People v. Livingston, 184 A.D.2d 529).
The defendant's remaining contentions are without merit.
Rosenblatt, J. P., Miller, Ritter and Florio, JJ., concur.