Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentJan 7, 1988
136 A.D.2d 469 (N.Y. App. Div. 1988)

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January 7, 1988

Appeal from the Supreme Court, New York County (Howard Bell, J.).

Although it is clear that the possession charges are not lesser included offenses of the sale charge (see, People v Teixeira, 101 A.D.2d 818 [2d Dept 1984]; People v Cogle, 94 A.D.2d 158 [3d Dept 1983]) and thus dismissal of the possessory charges is not required, the People concede that because the possessory charges flow from the sale charge, dismissal of the possessory charges is appropriate (see, People v Gaul, 63 A.D.2d 563 [1st Dept 1978]). Moreover, criminal possession of a controlled substance in the seventh degree is a lesser included offense of criminal possession of a controlled substance in the fifth degree and the former must be dismissed in view of the dismissal of the latter. (See, People v Holman, 117 A.D.2d 534 [1st Dept 1986]; People v Nickens, 121 A.D.2d 199 [1st Dept 1986].)

We have reviewed the other contentions of the defendant and find them to be without merit.

Concur — Kupferman, J.P., Sullivan, Ross, Ellerin and Smith, JJ.