People v. Givens , 727 N.Y.S.2d 371 ( 2001 )

—Judgment unanimously modified as a matter of discretion in the interest of justice and as modified affirmed in accordance with the following Memorandum: Defendant appeals from a judgment convicting him after a jury trial of two counts each of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]) and criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]), and one count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Defendant contends that County Court erred in denying his motion to suppress cocaine found by police during a search of 1002 Midland Avenue. Defendant offered no evidence at the suppression hearing that he had an expectation of privacy at that residence, and thus the court properly determined that defendant lacks standing to challenge the legality of the search (see, People v Wesley, 73 NY2d 351, 357-359). Defendant received effective assistance of counsel (see, People v Baldi, 54 NY2d 137, 147), and the sentence is neither unduly harsh nor severe. Contrary to defendant’s further contention, the verdict is not repugnant (see generally, People v Tucker, 55 NY2d 1, 7, rearg denied 55 NY2d 1039).

We conclude, however, that count five of the indictment charging defendant with criminal possession of a controlled substance in the seventh degree is a lesser inclusory concurrent count of count four charging defendant with criminal possession of a controlled substance in the fifth degree (see, People v Greer, 217 AD2d 1003, 1004). Although the error is not preserved for our review, we modify the judgment as a matter of discretion in the interest of justice by reversing defendant’s conviction of criminal possession of a controlled substance in the seventh degree under count five of the indictment, vacating the sentence imposed thereon and dismissing that count of the indictment. (Appeal from Judgment of Onondaga County Court, Fahey, J. — Criminal Possession Controlled Substance, 3rd Degree.) Present — Green, J. P., Hayes, Wisner, Kehoe and Lawton, JJ.