People v. Sydnor

Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.), rendered April 29, 1997, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the third degree, and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant’s contention that the trial court erred in failing to impose a Rosario sanction on the People is unpreserved for appellate review (see, CPL 470.05 [2]; People v Rogelio, 79 NY2d 843; People v Johnson, 167 AD2d 422). In any event, the lost photograph of the defendant’s identification card and the *509attached subject data sheet which listed his pedigree did not constitute Rosario material (see, CPL 240.45 [1]; People v Rosario, 9 NY2d 286, cert denied 386 US 866; People v Brock, 246 AD2d 406; People v Wilson, 210 AD2d 520).

However, as correctly conceded by the People, the defendant’s conviction for criminal possession of a controlled substance in the third degree was a concurrent inclusory count of one of the counts of criminal sale of a controlled substance in the third degree (see, People v Sea, 49 NY2d 1032; People v Robinson, 45 NY2d 448; People v Pinto, 235 AD2d 261; People v Lee, 196 AD2d 509). Therefore, the defendant’s conviction of criminal possession of a controlled substance in the third degree must be vacated and that count of the indictment dismissed. Joy, J. P., Friedmann, Krausman and Luciano, JJ., concur.