Opinion
KA 03-00776.
Decided March 19, 2004.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered June 21, 2002. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (two counts).
DAVID M. PARKS, ITHACA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, HURLBUTT, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16, [12]) arising from his possession of more than one-half ounce of cocaine with the intent to sell it. Defendant contends that, because both counts involve the same cocaine, this Court should modify the judgment as a matter of discretion in the interest of justice by reversing that part convicting him of one of the two counts. We decline to do so, inasmuch as the two counts are separate crimes ( see People v. Campbell, 175 A.D.2d 612, lv denied 78 N.Y.2d 1074; see also People v. Thomas, 174 A.D.2d 994, lv denied 78 N.Y.2d 1012, 1015). The sentence is not unduly harsh or severe.