Opinion
April 5, 1993
Appeal from the Supreme Court, Westchester County (Rosato, J.).
Ordered that the judgment rendered under Indictment No. 89-01977 is affirmed; and it is further,
Ordered that the judgment rendered under Indictment No. 89-01791 is modified, on the law, by reversing the conviction for criminal possession of a controlled substance in the seventh degree (two counts), vacating the sentence imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment rendered under Indictment No. 89-01791 is affirmed.
The defendant correctly contends, and the People concede, that the defendant's convictions under Indictment No. 89-01791 for criminal possession of a controlled substance in the seventh degree (counts five and six) must be vacated as lesser-included offenses of criminal possession of a controlled substance in the third degree (counts three and four), as they both relate to the possession of the same narcotics (see, People v Zarzuela, 141 A.D.2d 788, 789).
Upon examination of the defendant's affirmation in opposition to consolidation, we find that the trial court did not improvidently exercise its discretion in granting the People's motion for consolidation for trial of Indictment Nos. 89-01791 and 89-01977, as the defendant failed to demonstrate that consolidation would prejudice his right to a fair trial (see, CPL 200.20, [2] [c]; People v Lane, 56 N.Y.2d 1; People v Rose, 187 A.D.2d 617; People v Moses, 169 A.D.2d 786). Moreover, there is no proof in the record that the defendant suffered actual prejudice from consolidation, as the evidence regarding each incident was separately presented, uncomplicated and easily segregable in the mind of the jury (see, People v Rose, supra; People v Moses, supra; People v Nelson, 133 A.D.2d 470). Significantly, the trial court avoided the possibility of prejudice by instructing the jury on several occasions that they should separately consider the evidence with respect to each indictment (see, People v Rose, supra; People v Moses, supra).
Furthermore, the trial court's charge sufficiently instructed the jury as to the elements of accessorial liability. The court read the statutory definition of accessorial liability to the jurors, explained that they must find that the defendant "willingly and intentionally" aided his codefendants in committing the crimes charged, and instructed them that for each offense they must find that the defendant acted "knowingly and unlawfully" (People v Rawlings, 159 A.D.2d 655, 656; People v Lilly, 139 A.D.2d 671).
The defendant's remaining contentions, including those contained in his supplemental pro se brief, are either unpreserved for appellate review or without merit. Thompson, J.P., Rosenblatt, Miller and Ritter, JJ., concur.