Opinion
Submitted March 28, 1980
Decided May 8, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH JIUDICE, J.
Lloyd L. Rosenthal for appellant.
John R. King, District Attorney (Bridget R. Rahilly of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
In this case, the jury found defendant guilty of the crimes of criminal sale of a controlled substance in the third degree (Penal Law, § 220.39) and criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) arising out of a single transaction. Immediately following the rendition of the verdict, the jury was polled in accordance with CPL 310.80 and each member indicated his assent. Thereafter, the trial court dismissed the inclusory concurrent count of criminal possession of a controlled substance in the third degree. (See People v Robinson, 45 N.Y.2d 448.)
We reject defendant's contention that the trial court should have polled the jury a second time after dismissing the possession charge. During the initial poll, the jury clearly manifested that the verdict was unanimous, thus satisfying the statutory requirement set forth in CPL 310.80. The subsequent colloquy between counsel and the court concerning the People's motion to dismiss an inclusory concurrent count did not vitiate that expression of unanimity. Therefore, the trial court's acceptance of the verdict was proper.
We have examined such of defendant's remaining contentions as are preserved for appellate review and have found them to be without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.