The People of the State of New York, Respondent, v. Luis-Armando Velasquez, Appellant

(September 26, 1989) The People of the State of New York, Respondent, v Luis-Armando Velasquez, Appellant. [MAJORITY] Judgment of the Supreme Court, New York County (Eugene Nardelli, J.), rendered January 3, 1986, convicting the defendant, after a jury trial, of criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]) and criminal possession of a controlled substance in the first and third degrees (Penal Law § 220.21 [1]; § 220.16 [1]), and sentencing the defendant to two indeterminate terms of from 15 years to life, and one term of from 816 to 25 years, respectively, all to run concurrently, unanimously modified, on the law and facts and as a matter of discretion in the interest of justice, to dismiss those counts of the indictment charging the defendant with criminal possession of a controlled substance in the first and third degrees and, except as so modified, affirmed. As the People concede, and as we noted in deciding the prior appeal of defendant’s codefendant, although the possession counts are not lesser included offenses of the sale count, they should be dismissed in the interest of justice since possession of the same cocaine formed the basis of the sale count (People v Perez, 139 AD2d 460). We have examined the other points raised and find them to be without merit. Concur—Murphy, P. J., Kassal, Rosenberger, Ellerin and Rubin, JJ.