People v. Sutton

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kohm, J.), rendered February 28, 2000, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

*425Ordered that the judgment is reversed, on the law, the sentence is vacated, and the second count of the indictment charging the defendant with criminal possession of a controlled substance in the third degree is dismissed.

At his first trial, the defendant was convicted of, among other things, criminal possession of a controlled substance in the seventh degree, which is a lesser-included offense of criminal possession of a controlled substance in the third degree (see, People v Biggs, 280 AD2d 484; People v Owens, 249 AD2d 419, 420). As the People correctly concede, the conviction of criminal possession of a controlled substance in the seventh degree is deemed an acquittal of criminal possession in a controlled substance in the third degree (see, CPL 300.50 [4]), and “a retrial on the greater offense would be barred under settled double jeopardy principles” (People v Boettcher, 69 NY2d 174, 182; see, People v Helliger, 96 NY2d 462, 466). Accordingly, the defendant’s conviction of criminal possession of a controlled substance in the third degree must be reversed and the second count of the indictment dismissed. Altman, J. P., Smith, Adams and Prudenti, JJ., concur.