In re David S. , 749 N.Y.S.2d 413 ( 2002 )

Order of disposition, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered August 7, 2001, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that appellant had committed acts which, if committed by an adult, would constitute the crimes of criminal possession of a controlled substance in the third and fifth degrees, and placed him with the New York State Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the adjudication as to criminal possession of a controlled substance in the fifth degree, and dismissing that count of the petition, and otherwise affirmed, without costs.

The court’s finding was based on legally sufficient evidence and was not against the weight of the evidence (People v Bleakley, 69 NY2d 490).

As the presentment agency correctly concedes, criminal possession of a controlled substance in the fifth degree should have been dismissed as a lesser included offense of third-degree possession (see CPL 300.40 [3] [b]). Concur — Williams, P.J., Nardelli, Rosenberger, Ellerin and Lerner, JJ.