Opinion
October 26, 1998
Appeal from the County Court, Orange County (Berry, J.).
Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the third degree, and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's contention that the trial court erred in failing to impose a Rosario sanction on the People is unpreserved for appellate review ( see, CPL 470.05; People v. Rogelio, 79 N.Y.2d 843; People v. Johnson, 167 A.D.2d 422). In any event, the lost photograph of the defendant's identification card and the attached subject data sheet which listed his pedigree did not constitute Rosario material ( see, CPL 240.45; People v. Rosario, 9 N.Y.2d 286, cert denied 386 U.S. 866; People v. Brock, 246 A.D.2d 406; People v. Wilson, 210 A.D.2d 520).
However, as correctly conceded by the People, the defendant's conviction for criminal possession of a controlled substance in the third degree was a concurrent inclusory count of one of the counts of criminal sale of a controlled substance in the third degree ( see, People v. Sea, 49 N.Y.2d 1032; People v. Robinson, 45 N.Y.2d 448; People v. Pinto, 235 A.D.2d 261; People v. Lee, 196 A.D.2d 509). Therefore, the defendant's conviction of criminal possession of a controlled substance in the third degree must be vacated and that count of the indictment dismissed.
Joy, J. P., Friedmann, Krausman and Luciano, JJ., concur.