PEOPLE v. SANTIAGO (1997)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered December 16, 1994, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and two counts of criminal possession of a controlled substance in the seventh degree, and sentencing him to concurrent prison terms of 5 to 10 years, 1 year and 1 year, respectively, unanimously modified, on the law, to the extent of vacating the conviction of criminal possession of a controlled substance in the seventh degree under the second count of the indictment, and otherwise affirmed.

 The hearing court properly denied defendant's suppression motion.   We decline to disturb the hearing court's credibility determinations, which are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380).   Money found in defendant's possession was properly admitted into evidence as probative of defendant's intent to sell, an element which the People were required to prove (see, People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808;  People v. Brown, 198 A.D.2d 165, 604 N.Y.S.2d 61, lv. denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299).   The count of criminal possession of a controlled substance in the seventh degree relating to cocaine must be dismissed as an inclusory concurrent count of third-degree possession (see, CPL 300.40[3](b);  People v. Brown, 231 A.D.2d 433, 647 N.Y.S.2d 489, lv. denied 89 N.Y.2d 940, 655 N.Y.S.2d 891, 678 N.E.2d 504).

MEMORANDUM DECISION.