People v. Cudney

Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: Defendant appeals from a judgment of Supreme Court, Erie County, entered on April 22, 1974 after a jury verdict, convicting defendant of criminal possession of a dangerous drug in the fifth degree and criminal sale of a dangerous drug in the fourth degree. Defendant was sentenced to an indeterminate term with a maximum of three years on each count, to be served concurrently. The People concede that the count of criminal possession of a dangerous drug in the fifth degree should have been dismissed after the verdict as a lesser included offense of criminal sale of a dangerous drug in the fourth degree. We find defendant’s other allegations of error to be without merit and affirm *1140his conviction of criminal sale of a dangerous drug; however, we modify the judgment, insofar as it imposes sentence, as a matter of discretion in the interest of justice (CPL 470.15, subd 3, par [c]), by reducing the sentence to time served. (Appeal from judgment of Erie Supreme Court convicting defendant of criminal possession of a dangerous drug, fifth degree, and another charge.) Present—Marsh, P. J., Dillon, Hancock, Jr., Denman and Witmer, JJ.