PEOPLE v. GRANT (2019)

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Evelyn J. LaPorte, J., at trial; Gilbert C. Hong, J., at sentencing), rendered July 18, 2013. The judgment, insofar as appealed from as limited by the brief, convicted defendant, after a nonjury trial, of unlawful possession of marihuana, and imposed sentence.

ORDERED that the judgment, insofar as appealed from, convicting defendant of unlawful possession of marihuana is reversed, on the law, that count of the accusatory instrument is dismissed, and the matter is remitted to the Criminal Court for resentencing in accordance with this decision and order.

Defendant was charged with criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1] ) and unlawful possession of marihuana (Penal Law § 221.05). The factual allegations of the accusatory instrument allege that a police officer observed defendant smoking marihuana in a public place and recovered the marihuana from defendant's hand. Following a nonjury trial, defendant was convicted of both charges, and was sentenced to, among other things, a $ 100 fine. As limited by the brief, defendant appeals only from so much of the judgment as convicted him of unlawful possession of marihuana.

A guilty verdict upon a greater count is deemed a dismissal of the lesser included count (see CPL 300.40 [3]; People v. George, 49 A.D.3d 554, 855 N.Y.S.2d 551 [2008] ). A person cannot criminally possess marihuana in the fifth degree in violation of Penal Law § 221.10 (1), which provides that “[a] person is guilty of criminal possession of marihuana in the fifth degree when he knowingly and unlawfully possesses ․ marihuana in a public place ․ and such marihuana is burning or open to public view,” without also unlawfully possessing marihuana in violation of Penal Law § 221.05, which provides that “[a] person is guilty of unlawful possession of marihuana when he knowingly and unlawfully possesses marihuana.” Consequently, unlawful possession of marihuana is a lesser included offense of criminal possession of marihuana in the fifth degree (see CPL 1.20 [37] ). As a result, so much of the judgment as convicted defendant of the count of unlawful possession of marihuana is reversed and that count of the accusatory instrument is dismissed (see CPL 300.40 [3]; People v. Harris, 147 A.D.3d 1328, 1331, 47 N.Y.S.3d 528 [2017] ).¹

Since the Criminal Court imposed the $ 100 fine “on the docket,” and did not specify how much of the fine applied to each conviction, we cannot apportion the fine in order to remit to defendant so much thereof as was imposed on the unlawful possession of marihuana conviction. Therefore, the matter is remitted to the Criminal Court for resentencing.

Accordingly, the judgment, insofar as appealed from, convicting defendant of unlawful possession of marihuana is reversed, that count of the accusatory instrument is dismissed, and the matter is remitted to the Criminal Court for resentencing.

FOOTNOTES

1.   We review this question of law despite the fact that defendant failed to preserve it for appellate review (see People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579 [1976]; People v. Romain, 5 A.D.3d 611, 612, 772 N.Y.S.2d 875 [2004]; People v. Butler, 192 A.D.2d 543, 544, 596 N.Y.S.2d 93 [1993] ).

PESCE, P.J., ELLIOT and SIEGAL, JJ., concur.