Opinion
December 7, 1982
Judgment of the Supreme Court, New York County (Denzer, J.), rendered January 16, 1981, resentencing defendant on the count of criminal sale of a controlled substance in the second degree, modified, on the law, to the extent of vacating the sentences theretofore imposed for the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree and, except as so modified, affirmed. Defendant was indicted in a three-count indictment which charged him with acting in concert in the criminal sale of a controlled substance in the second degree and criminal possession of a controlled substance in the third and fifth degrees. In the court's charge to the jury, it withdrew from their consideration the two possession counts. Defendant was found guilty of the sale count. Through some inadvertence, defendant, at the time of sentencing, was sentenced to concurrent terms on all three counts. Somewhat more than five years later he was resentenced on the sale count. Nothing was said about the possession counts. As we read the record, the sentences imposed on the possession counts still remain in effect. Since defendant was never found guilty of those counts we vacate the sentences imposed therefor. We have examined the other issues raised by defendant and find them to be without merit.
Concur — Ross, J.P., Carro, Bloom and Kassal, JJ.