Opinion
December 19, 1978
Judgment, Supreme Court, Bronx County, rendered February 26, 1976, convicting defendant after a jury trial of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, unanimously modified, on the law, to dismiss the counts of criminal possession of a controlled substance in the first degree and otherwise affirmed. Defendant, on the facts of this case, could not have committed the criminal possession of a controlled substance in the first degree without also having committed the criminal sale of a controlled substance in the first degree, the counts being inclusory and concurrent (CPL 300.30, subd 4; People v. Rivers, 59 A.D.2d 847). Where the verdict is comprised of inclusory, concurrent counts, a verdict of guilty on the greater is deemed a dismissal of the lesser count (CPL 300.40, subd 3, par [b]; People v. Lee, 39 N.Y.2d 388, 390). We have examined the other points raised by appellant and find them without merit. Moreover, although afforded an opportunity to do so, appellant pro se has failed to file any supplemental points.
Concur — Lupiano, J.P., Birns, Fein, Markewich and Sullivan, JJ.