Opinion
Submitted February 22, 2001.
March 19, 2001.
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (West, J.), rendered June 23, 1999, convicting him 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, upon a jury verdict, and imposing sentence.
Patricia W. Jellen, Eastchester, N.Y., for appellant, and appellant pro se.
Jeanine Pirro, District Attorney, White Plains, N.Y. (Dana M. Loiacono and Richard Longworth Hecht of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating 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's contention that the evidence was legally insufficient to support his conviction is unpreserved for appellate review (see, People v. Udzinski, 146 A.D.2d 245). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant was not denied the effective assistance of counsel (see, People v. Benevento, 91 N.Y.2d 708).
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. Therefore, we dismiss that count of the indictment (see, People v. Queen, 258 A.D.2d 480; People v. Martinez, 209 A.D.2d 641).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.