People
v.
Fortner

Appellate Division of the Supreme Court of New York, Second DepartmentOct 14, 1980
78 A.D.2d 661 (N.Y. App. Div. 1980)

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October 14, 1980


Appeal by defendant from (1) a judgment of the Supreme Court, Kings County, rendered August 22, 1977, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered July 26, 1978 nunc pro tunc August 22, 1977, as amended by a resentence imposed January 28, 1980, convicting him of criminal sale of a controlled substance in the second degree, upon a jury verdict, and imposing sentence. Judgment rendered August 22, 1977 reversed, on the law, and the second count of the indictment charging criminal possession of a controlled substance in the third degree is dismissed. Judgment rendered July 26, 1978 as amended January 28, 1980, affirmed. Defendant's active involvement in the presale narcotics negotiations, offering a taste, indicating his ability to sell the narcotics, quoting a price and ultimately taking the undercover officer and informant to his cohort who actually sold the drugs, more than adequately established his guilt beyond a reasonable doubt of criminal sale of a controlled substance in the second degree as an accomplice of the seller. However, on the facts of this case, defendant could not have committed criminal sale of a controlled substance in the second degree without also having committed criminal possession of a controlled substance in the third degree. The latter is an inclusory concurrent count of the former and must be dismissed (CPL 300.40, subd 3, par [b]; People v. Lee, 39 N.Y.2d 388). We have considered defendant's remaining contentions and find them to be without merit. Gibbons, J.P., Gulotta, Margett and Martuscello, JJ., concur.