Opinion
June 7, 1991
Appeal from the Supreme Court, Erie County, Kasler, J.
Present — Callahan, J.P., Denman, Balio, Lawton and Lowery, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted, following a jury trial, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16) for selling cocaine to an undercover police officer in the City of Buffalo on two separate occasions. On appeal, defendant contends that the convictions for criminal possession of a controlled substance in the third degree should be dismissed in the interest of justice as non-inclusory concurrent counts with the sale counts (see, People v Gaul, 63 A.D.2d 563, lv denied 45 N.Y.2d 780; see also, People v Miranda, 151 A.D.2d 321, lv denied 74 N.Y.2d 815; People v Troche, 141 A.D.2d 377, lv denied 72 N.Y.2d 962; People v Perez, 139 A.D.2d 460, affd 74 N.Y.2d 637; People v Chillis, 79 A.D.2d 872).
Although defendant correctly concedes that the possession charge is not a lesser included offense of the sale charge (see, People v Weathersby, 44 N.Y.2d 686), he requests that this Court exercise its discretion and dismiss the possession counts in the interest of justice. We reject this request and, contrary to the cases cited by defendant, we decline to exercise our discretion to dismiss those counts in the interest of justice. The two counts of possession of cocaine are non-inclusory concurrent counts with the criminal sale counts and we perceive no reason for dismissing those counts in the interest of justice. They are separate crimes.
In addition, we find that the evidence was legally sufficient to support the convictions. Although it appears that some police paperwork incorrectly listed the first sale as having taken place on February 15, 1989, the arresting officer testified that this was an error that was corrected after it was brought to her attention when she appeared to testify at the Grand Jury. Since the indictment correctly set forth the date of the first sale as February 14, 1989, and the police testified in accordance with the date set forth in the indictment, there is no merit to defendant's claim that he was misled or unfairly prejudiced (see, People v Morris, 61 N.Y.2d 290). Viewing the evidence in the light most favorable to the People (see, People v Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), we find that there was sufficient evidence to support defendant's identification and conviction.
Because defendant never requested that the People disclose the identity of the informant or produce the informant at trial, that issue has not been preserved for appellate review (see, People v Fedrick, 172 A.D.2d 1043; cf., People v Brown, 84 A.D.2d 910).
The court did not abuse its discretion in imposing concurrent indeterminate sentences of 3 to 9 years and we find no basis for a modification in the interest of justice.