People v. Gravesand

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Kreindler, J.), rendered August 12, 1991, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reversing the conviction for criminal possession of a controlled substance in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. As the People correctly concede, since criminal possession of a controlled substance in the third degree was not among the counts submitted to the jury at a prior trial on the indictment, resulting in a partial verdict, it was fundamental error for the court to submit that count to the jury at the instant trial (see, People v Williams, 133 AD2d 717, 718-719; People v Anderson, 111 AD2d 124). The defendant’s remaining contentions are unpreserved for appellate review or without merit (see, People v Gray, 86 NY2d 10; People v Sanchez, 86 NY2d 27). Thompson, J. P., Joy, Gold-stein and Florio, JJ., concur.