PEOPLE v. EXCELL (1998)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann, J.), rendered November 20, 1996, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

As correctly conceded by the People, the defendant's conviction for criminal possession of a controlled substance in the seventh degree must be reversed.   This count was a lesser-included offense of criminal possession of a controlled substance in the third degree and should have been dismissed as both counts related to the same “stash” of cocaine (see, CPL 300.40[3][b];  People v. Reed, 222 A.D.2d 459, 460, 634 N.Y.S.2d 541;  People v. Figueroa, 219 A.D.2d 606, 607-608, 631 N.Y.S.2d 184).

The sentence imposed upon the defendant was not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is unpreserved for appellant review (see, CPL 470.05[2] ) and, in any event, any error was harmless (see, People v. Brown, 195 A.D.2d 474, 475, 600 N.Y.S.2d 116).

MEMORANDUM BY THE COURT.