Opinion
April 20, 1992
Appeal from the Supreme Court, Kings County (DeLury, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted of both criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. However, as conceded by the People, the latter crime is a lesser-included offense of the former, which, under the circumstances of this case, should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Vargas, 155 A.D.2d 565; People v Rodriguez, 126 A.D.2d 681).
The defendant's contention that the court improperly instructed the jury on the procedure for obtaining a search warrant is not preserved for appellate review, as no objection was made to that instruction (see, CPL 470.05).
The sentence imposed was not unduly harsh or excessive (see, People v Suitte, 90 A.D.2d 80). Harwood, J.P., Balletta, Rosenblatt and Copertino, JJ., concur.