People v. Victorio

Judgement, Supreme Court, New York County (James J. Leff, J.), rendered May 28, 1985, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees and sentencing him as a predicate felon to two concurrent indeterminate terms of imprisonment of from 4 Vi to 9 years and one definite term of 6 months, respectively, unanimously modified, on the law, to vacate the conviction of criminal possession of a controlled substance in the seventh degree and to dismiss the underlying charge (count three), and, except as thus modified, affirmed.

As the People concede, criminal possession of a controlled substance in the seventh degree, as charged in this case, is an inclusory concurrent offense of criminal possession of a controlled substance in the third degree. (CPL 1.20 [37]; 300.30 [4].) Thus, the conviction of criminal possession of a controlled *2substance in the seventh degree must be vacated and the underlying charge dismissed. (CPL 300.40 [3] [b]; People v Holman, 117 AD2d 534.)

We have examined defendant’s other points and find that they are without merit. Concur—Murphy, P. J., Sullivan, Asch, Rosenberger and Wallach, JJ.