PEOPLE v. MARTIN (1998)

Judgment, Supreme Court, Bronx County (John Stackhouse, J.), rendered September 27, 1995, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 7 to 14 years, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating the conviction of criminal possession of a controlled substance in the third degree and dismissing that count of the indictment, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Credibility issues including inconsistencies in testimony were properly considered by the jury and we see no reason to disturb the jury's determination.

Since the convictions for possession and sale both stem from the same glassine of heroin bought by the undercover officer, the possession count should be dismissed in the interest of justice as a non-inclusory concurrent count (see, People v. Pinto, 235 A.D.2d 261, 652 N.Y.S.2d 28).   Defendant's other contentions concerning the possession conviction are rendered academic by this disposition.

We perceive no abuse of sentencing discretion.

MEMORANDUM DECISION.