PEOPLE v. ZAPATA

Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating 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 NY2d 620), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant was guilty of criminal sale of a controlled substance in the third degree, under an acting-in-concert theory ( see, People v Manini, 79 NY2d 561; People v Kaplan, 76 NY2d 140), and that he was in constructive possession of a quantity of cocaine and of a weapon seized at the scene of the crimes ( see, People v Pearson, 75 NY2d 1001; People v Johnson, 209 AD2d 721). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence ( see, CPL 470.15).

However, as the People concede, the defendant's conviction on the charge of criminal possession of a controlled substance in the seventh degree must be vacated and the count of the indictment charging that crime must be dismissed, as it is a lesser-included offense of criminal possession of a controlled substance in the third degree ( see, People v McCray, 204 AD2d 490; CPL 300.40 [b]). The remaining sentences imposed were neither harsh nor excessive ( see, People v Suitte, 90 AD2d 80).

The defendant's remaining contentions are without merit.