Opinion
January 7, 1988
Judgment of the Supreme Court, New York County (Edward McLaughlin, J.), rendered on March 27, 1986, which convicted defendant, following a jury trial, of criminal sale of a controlled substance in the fifth degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree and sentenced him, as a predicate felon, to two concurrent indeterminate terms of imprisonment of from 2 to 4 years to run concurrently with a determinate term of 1 year, is unanimously modified, on the law, to the extent of reversing the conviction for criminal possession of a controlled substance in the seventh degree, vacating the sentence thereon, and otherwise affirmed. Defendant correctly asserts, and the People agree, that the offense of criminal possession of a controlled substance in the seventh degree is an inclusory concurrent offense of the crime of criminal possession of a controlled substance in the fifth degree, and, therefore, his conviction on the former count must be reversed (see, CPL 300.40 [b]; People v Holman, 117 A.D.2d 534). We have considered defendant's other contentions and find them to be without merit.
Concur — Ross, J.P., Asch, Milonas and Rosenberger, JJ.