Ordered that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see, CPL 470.15).
The defendant's contention that he was denied a fair trial because the court refused to admit into evidence a videotape of the crime scene is without merit. The defendant failed to lay a proper foundation for the introduction of the videotape and, consequently, the court did not improvidently exercise its discretion in refusing to admit it into evidence ( see, People v. McGee, 49 N.Y.2d 48, 59, cert denied sub nom. Waters v. New York, 446 U.S. 942).
However, the defendant's conviction of criminal possession of a controlled substance in the seventh degree must be reversed and that count of the indictment dismissed as that crime is a lesser-included offense of criminal possession of a controlled substance in the third degree ( see, CPL 300.40 [b]; People v. Figueroa, 219 A.D.2d 606).
The defendant's remaining contentions are either unpreserved for appellate review or do not warrant reversal.
Altman, J.P., Krausman, Florio and Luciano, JJ., concur.