Opinion
November 3, 1977
Judgment, Supreme Court, New York County, rendered July 8, 1975, convicting defendant after jury trial of two counts of criminal sale of a controlled substance, third degree, three counts of criminal possession of a controlled substance, seventh degree, and one count of criminal possession of a controlled substance, fifth degree, unanimously modified, on the law, to dismiss counts three and six of the indictment charging criminal possession of a controlled substance in the seventh degree, and otherwise affirmed. On the facts of this case, the defendant could not have committed the criminal sales in the third degree without having committed criminal possession in the seventh degree as charged in the third and sixth counts of the indictment. Where the verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greater is deemed a dismissal of the lesser counts. (People v Lee, 39 N.Y.2d 388, 390; People v Arbore, 48 A.D.2d 615.) We have examined the other points raised by appellant and find them without merit.
Concur — Murphy, P.J., Birns, Evans and Capozzoli, JJ.