People v. Lieboff

• Decision Date: 15 February 1977
• Citation: 56 A.D.2d 612,391 N.Y.S.2d 655
• Parties: The PEOPLE, etc., Respondent, v. Samuel LIEBOFF, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

391 N.Y.S.2d 655

56 A.D.2d 612

The PEOPLE, etc., Respondent, v. Samuel LIEBOFF, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 15, 1977.

William E. Hellerstein and William J. Gallagher, New York City (Theodore Ruthizer, Mineola, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Elliott Schulder, Brooklyn, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN, RABIN and TITONE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 5, 1974, convicting him of criminally selling a dangerous drug in the third degree (two counts) (Penal Law, former § 220.35), criminal possession of a dangerous drug in the third degree (Penal Law, former § 220.20), criminal possession of a dangerous drug in the fourth degree (two counts) (Penal Law, former § 220.15), and criminal possession of a dangerous drug in the sixth degree (Penal Law, former § 220.05) (see L.1969, chs. 787, 788, eff. Sept. 1, 1969), upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the convictions of criminal possession of a dangerous drug in the third, fourth and sixth degrees, and the sentences imposed thereon, and the said counts (the second, third, fifth and sixth of the indictment) are dismissed. As so modified, judgment affirmed, and case remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (subd. 5).

Under the facts of this case, defendant could not have committed the crimes of criminally selling a dangerous drug in the third degree without also having committed various degrees of the crime of criminal possession of a dangerous drug. Accordingly, the guilty verdict on the sale counts requires dismissal of the several possession counts (see CPL 300.40, subd. 3, par. (b); People v. Grier, 37 N.Y.2d 847, 378 N.Y.S.2d 37, 340 N.E.2d 471; People v. Lugo, 53 A.D.2d 650, 384 N.Y.S.2d 492).