People v. Nickens

Judgment, Supreme Court, New York County (A. Williams, J.), rendered January 31, 1984, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees and sentencing him to an indeterminate term of 4½ to 9 years on the third degree count and to a concurrent definite term of one year on the seventh degree count, unanimously modified, on the law, to reverse the conviction of criminal possession of a controlled substance in the seventh degree and to vacate the one-year sentence imposed thereon, and otherwise affirmed. A police officer using binoculars observed defendant delivering glassine envelopes containing a white powdery substance to two persons in exchange for money. Defendant secreted a number of such envelopes, held together with a rubber band, behind the phone in a nearby telephone booth. After arresting defendant, the backup officer found 10 glassine envelopes 200 containing cocaine inside a small circular hole near the top of the phone booth. This evidence was sufficient to support defendant’s conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), i.e., possession with intent to sell. However, the court erred in not dismissing the count charging criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). As the District Attorney properly concedes, criminal possession of a controlled substance in the seventh degree is an inclusory concurrent count (CPL 300.30 [4]) of criminal possession of a controlled substance in the third degree, of which defendant was also convicted. As such, the inclusory count should have been dismissed (CPL 300.40 [3] [b]; People v Williams, 67 AD2d 265, affd 50 NY2d 996; People v Gaul, 63 AD2d 563). Accordingly, the conviction of criminal possession of a controlled substance in the seventh degree should be reversed, and the one-year sentence vacated. Concur — Sullivan, J. P., Asch, Fein, Kassal and Ellerin, JJ.