Opinion
April 26, 1988
Appeal from the Supreme Court, New York County (Eugene Nardelli, J.).
The main thrust of defendant's appeal challenges the effect of a photographic display on an undercover officer's in-court identification of defendant. Officer Jose Gonzalez was shown the arrest photographs of two men who matched Gonzalez' description of men involved in a drug buy which occurred earlier in the month. Officer Gonzalez identified defendant as one of the men involved in the earlier drug buy. First, the officer's viewing of defendant's photograph was confirmatory, rather than an initial identification (see, People v. Morales, 37 N.Y.2d 262). Further, Gonzalez' in-court identification was based on an independent source, his ability to view defendant during the drug buy for approximately three minutes from a short distance away. Defendant's arguments concerning prejudice and an improper summary denial of his motion to dismiss similarly lack merit.
The possession charges should, however, be dismissed in the interest of justice. Although the possession counts are not lesser included offenses of the sale count (People v. Teixeira, 101 A.D.2d 818 [2d Dept 1984]; People v. Cogle, 94 A.D.2d 158 [3d Dept 1983]), and thus dismissal of the possessory charges is not required, the People concede that these noninclusory concurrent counts should be dismissed since possession of the same cocaine formed the basis of the sale count (People v. Harrison, 136 A.D.2d 469 [1st Dept]; People v. Evans, 70 A.D.2d 816 [1st Dept 1979]; People v. Gaul, 63 A.D.2d 563 [1st Dept 1978], lv denied 45 N.Y.2d 780).
Concur — Kupferman, J.P., Ross, Kassal, Rosenberger and Smith, JJ.