Opinion
December 27, 2000.
Appeal from Judgment of Supreme Court, Monroe County, Ark, J. — Criminal Sale Controlled Substance, 3rd Degree.
PRESENT: PIGOTT, JR., P.J., HURLBUTT, KEHOE AND LAWTON, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following
Memorandum:
Defendant appeals from a judgment convicting him of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the third degree (two counts) (Penal Law § 220.16), for which he was sentenced to concurrent indeterminate terms of incarceration of 3 to 9 years. We reject defendant's contention that counts two and three of the indictment must be dismissed because the trial proof made out three distinct acts of criminal possession even though only two were charged. We conclude, however, that the evidence established a single continuous act of criminal possession that was jointly committed by defendant and his accomplice and in which defendant `s possession of the drugs was at times actual and at times constructive ( see, People v. Manini, 79 N.Y.2d 561, 569-574; People v. Keitt, 42 N.Y.2d 926, 927; People v. Cielock, 217 A.D.2d 1001, 1002, lv denied 86 N.Y.2d 841; cf., People v. Francis, 79 N.Y.2d 925, 926-927; see generally, People v. Salcedo, 92 N.Y.2d 1019, 1021; Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 149-1 52). We thus modify the judgment by reversing the conviction of criminal possession of a controlled substance in the third degree under the third count of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment.
The sentence imposed is not unduly harsh or severe ( see, People v. Kidd, 265 A.D.2d 859, 860, lv denied 94 N.Y.2d 824). The fact that the sentence imposed after trial was more severe than that offered to defendant if he pleaded guilty is not a basis for disturbing the sentence ( see, People v. Maddox, 272 A.D.2d 884, lv denied 95 N.Y.2d 867; People v. Rogers, 245 A.D.2d 1041, 1041-1042).