March 31, 1983
Judgment, Supreme Court, New York County (McCooe, J., at trial), rendered May 8, 1980, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the second and third degrees and criminal facilitation in the third degree and sentencing him to concurrent terms of three years to life, unanimously modified, on the law, to dismiss the conviction for criminal facilitation in the third degree, and otherwise affirmed. Appellant's appeal from the judgment of said court rendered on the same date convicting him of bail jumping is dismissed as abandoned. The trial court submitted to the jury a charge of criminal facilitation in the first degree as a lesser included offense of a count charging criminal sale of a controlled substance in the first degree. Following the jury's verdict of guilty, the trial court reduced that verdict to criminal facilitation in the third degree. As the People acknowledge, it was error to submit the criminal facilitation charge. In People v. Glover ( 57 N.Y.2d 61), decided after this trial, the Court of Appeals made it clear that the criminal facilitation charge submitted to the jury was not a lesser included offense of the criminal sale charge. In People v. Ford ( 91 A.D.2d 589), this court, following the principle set forth in People ex rel. Gray v. Tekben ( 86 A.D.2d 176, 179-180, affd 57 N.Y.2d 651), held that a defendant may not waive his right to object to the submission of a lesser count when that count is not a valid lesser included offense. Accordingly, the judgment appealed from should be modified to dismiss the defendant's conviction for criminal facilitation in the third degree. We have considered the defendant's other contentions and find them to be without substantial merit.
Concur — Murphy, P.J., Sandler, Ross and Alexander, JJ.