Opinion
May 7, 1984
Appeals by defendant from (1) a judgment of the Supreme Court, Kings County (De Lury, J.), rendered January 11, 1982, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence and (2) a judgment of the same court, also rendered January 11, 1982, convicting him of criminal possession of a controlled substance in the fourth degree, upon a plea of guilty, and imposing sentence. ¶ Judgments affirmed. ¶ On appeal, defendant contends that his convictions for criminal possession of a controlled substance in the seventh degree must be reversed and those counts dismissed since that crime is a lesser included offense of the crime of criminal sale of a controlled substance in the third degree for which he was also convicted (CPL 300.40, subd 3, par [b]). Defendant's argument is without merit. ¶ In People v Glover ( 57 N.Y.2d 61, 63-64) the Court of Appeals defined a lesser included offense as follows: ¶ "that it is an offense of lesser grade or degree and that in all circumstances, not only in those presented in the particular case, it is impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense * * * ¶ "Thus, it must now be shown that, in theory, the charged, greater crime could not be committed without the lesser offense also being committed". ¶ Pursuant to the standard set forth by the Court of Appeals in People v Glover ( supra), the Third Department has held that possession offenses relating to controlled substances are not lesser included offenses of those crimes prohibiting their sale ( People v Cogle, 94 A.D.2d 158; People v Scarincio, 95 A.D.2d 967). We agree with this holding of the Third Department. ¶ It is true that in People v Tuggle ( 99 A.D.2d 518) this court held to the contrary. However, the holding in that case was based on a concession by the People. In view of our determination herein, the holding of People v Tuggle ( supra) should not be followed. ¶ We have examined the remaining points raised by the defendant and find them to be without merit. Mangano, J.P., O'Connor, Boyers and Eiber, JJ., concur.