People v. Hood , 54 A.D.2d 585 ( 1976 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 11, 1973, convicting him of criminally selling a dangerous drug in the third degree, criminal possession of a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction for criminal possession of a dangerous drug in the fourth degree and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The crime of criminal possession of a dangerous drug in the fourth degree under subdivision 1 of former section 220.15 of the Penal Law, is a lesser included offense of the crime of criminally selling a dangerous drug in the third degree under former section 220.35 of the Penal Law (see L 1969, ch 788) and, accordingly, the jury’s finding of guilt on the latter charge is deemed a dismissal of the former (see CPL 300.40, subd 3, par [b]; People v Droz, 46 AD2d 751). The conviction of criminal possession of a dangerous drug in the third degree is not being dismissed. That count required proof of an additional element, namely, that the dangerous drug here involved (cocaine) must have had an aggregate weight of more than one ounce. To this extent, criminal possession in the third degree is not included within the crime of criminally selling in the third degree. Accordingly, only the conviction for criminal possession of a dangerous drug in the fourth degree should be dismissed as a lesser included offense. Hopkins, Acting P. J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.