People v. Biggs

—Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Mason, J.), rendered October 27, 1998, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh 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 seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. The trial court properly permitted the People to present rebuttal testimony in response to evidence adduced by the defense (see, CPL 260.30 [7]; People v Harris, 57 NY2d 335, 345). While it was improper for the prosecutor to elicit testimony from the rebuttal witness concerning his involvement with a narcotics enforcement unit, any prejudice caused by this testimony was dissipated by the trial court’s prompt curative instruction (see, People v Vincent, 250 AD2d 787, 788; People v Baez, 208 AD2d 638, 639). The defendant’s conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser-included offense of the crime of criminal possession of a controlled substance in the third degree (see, CPL 300.40 [3] [b]; People v Owens, 249 AD2d 419, 420-421; People v Hammond, 220 AD2d 684, 686). However, criminal possession of a controlled substance in the third degree is not a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, since offenses relating to the possession of controlled substances are not lesser-included offenses of crimes prohibiting their sale (see, People v Reed, 222 AD2d 459; People v Byrd, 214 AD2d 581; People v Campbell, 175 AD2d 612). Accordingly, the defendant is not entitled to dismissal of that count of the indictment charging criminal possession of a controlled substance in the third degree. The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80). The defendant’s remaining contention is without merit. S. Miller, J. P., H. Miller and Smith, JJ., concur.