Opinion
February 3, 1966
Judgment convicting defendant of the crimes of selling a narcotic drug (Penal Law, § 1751, subd. 1; two counts) and possessing a narcotic drug (Public Health Law, § 3305; two counts), unanimously modified, on the law and on the facts, to the extent of reducing the sentence imposed under the Penal Law to not less than five nor more than seven years on the ground that the sentence was excessive in view of defendant's previous good record, and, as so modified, affirmed. The imposition of concurrent sentences was proper since the punishment does not exceed the maximum for the crime of selling narcotics. (Penal Law, § 1938; People ex rel. Maurer v. Jackson, 2 N.Y.2d 259.) In People v. Repola ( 280 App. Div. 735, affd. 305 N.Y. 740), this court struck out a consecutive sentence on the ground that possession was a part of the sale and included in it. In the instant case, the sentences are concurrent and in accord with the holding in People ex rel. Maurer v. Jackson ( supra).
Concur — Valente, J.P., McNally, Eager, Steuer and Witmer, JJ.