People v. Everett

Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and criminal possession of a controlled substance in the third degree (two counts) (Penal Law § 220.16 [1]), for which he was sentenced to concurrent indeterminate terms of incarceration of 3 to 9 years. We reject defendant’s contention that counts two and three of the indictment must be dismissed because the trial proof made out three distinct acts of criminal possession even though only two were charged. We conclude, however, that the evidence established a single continuous act of criminal possession that was jointly committed by defendant and *886his accomplice and in which defendant’s possession of the drugs was at times actual and at times constructive (see, People v Martini, 79 NY2d 561, 569-574; People v Keitt, 42 NY2d 926, 927; People v Cielock, 217 AD2d 1001, 1002, lv denied 86 NY2d 841; cf., People v Francis, 79 NY2d 925, 926-927; see generally, People v Salcedo, 92 NY2d 1019, 1021; Matter of Johnson v Morgenthau, 69 NY2d 148, 149-152). We thus modify the judgment by reversing the conviction of criminal possession of a controlled substance in the third degree under the third count of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment.

The sentence imposed is not unduly harsh or severe (see, People v Kidd, 265 AD2d 859, 860, lv denied 94 NY2d 824). The fact that the sentence imposed after trial was more severe than that offered to defendant if he pleaded guilty is not a basis for disturbing the sentence 9see, People v Maddox, 272 AD2d 884, lv denied 95 NY2d 867; People v Rogers, 245 AD2d 1041, 1041-1042). (Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Criminal Sale Controlled Substance, 3rd Degree.) Present — Pigott, Jr., P. J., Hurlbutt, Kehoe and Lawton, JJ.