Opinion
November 13, 1995
Appeal from the Supreme Court, Kings County (Kreindler, J.).
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 A.D.2d 717, 718-719; People v Anderson, 111 A.D.2d 124).
The defendant's remaining contentions are unpreserved for appellate review or without merit (see, People v Gray, 86 N.Y.2d 10; People v Sanchez, 86 N.Y.2d 27). Thompson, J.P., Joy, Goldstein and Florio, JJ., concur.