Opinion
November 4, 1991
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is modified, on the law, by reversing the defendant's conviction of criminal possession of a controlled substance in the seventh degree as charged in the third count of the Indictment No. 8766/88, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed; and it is further,
Ordered that the amended judgment is affirmed.
The defendant was convicted of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree based on one sale of cocaine to an undercover police officer. As the People concede, his conviction of criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree and, under the circumstances of this case, should have been dismissed as an inclusory concurrent count pursuant to CPL 300.40 (3) (b) (see, People v. Grier, 37 N.Y.2d 847; People v. Vargas, 155 A.D.2d 565; People v. Velez, 150 A.D.2d 514; People v Policano, 139 A.D.2d 773).
We find that the sentences imposed are not excessive (see, People v. Suitte, 90 A.D.2d 80).
The defendant's remaining contention is unpreserved for appellate review, and, in any event, is without merit. Mangano, P.J., Bracken, Lawrence and O'Brien, JJ., concur.