Opinion
January 28, 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 20, 1977, convicting him of criminal possession of a controlled substance in the third and fifth degrees, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the fifth degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Since the jury found the defendant guilty of criminal possession of a controlled substance in the third degree, the trial court should have dismissed the third count of the indictment charging criminal possession of a controlled substance in the fifth degree since the latter is an inclusory concurrent count of the former (see People v. Robinson, 45 N.Y.2d 448). Concerning the defendant's request that we modify his sentence, we note that such application must be made to Criminal Term (see Penal Law, § 60.09; People v. Rivera, 72 A.D.2d 610; People v. Oliver, 73 A.D.2d 653). We have considered the other contentions raised by the defendant and have found them to be without merit. Mangano, J.P., Rabin, Gulotta and Margett, JJ., concur.