People v. Payne , 55 A.D.2d 817 ( 1976 )

Judgment unanimously modified, on the law, in accordance with memorandum and, as modified, affirmed, Simons, J., not participating. Memorandum: Since possession of a controlled substance is a lesser included offense of the crime of sale of a controlled substance (People v Droz, 46 AD2d 751), a verdict of guilty and conviction of sale of a controlled substance must be deemed a dismissal of the lesser included count of possession (CPL 300.40, subd 3, par [b]). Judgment of conviction of possession of a controlled substance must, therefore, be reversed, the sentence imposed thereon vacated, and the second count of the indictment accordingly dismissed (People v Grier, 37 NY2d 847; People v Pyles, 44 AD2d 784). We have examined the other contentions of appellant and find them to be without merit. (Appeal from judgment of Niagara County Court—criminal sale of controlled substance, second degree, and another charge.) Present— Moule, J. P., Cardamone, Simons, Mahoney and Dillon, JJ.