PEOPLE v. TROCHE

The People concede that seventh degree possession of a controlled substance is a lesser inclusory concurrent count of third degree possession of a controlled substance, and thus should have been dismissed as a matter of law (CPL 300.40 [b]; People v Holman, 117 A.D.2d 534). And, while third degree possession is not a lesser inclusory concurrent count of third degree sale, the People also acknowledge that in the context of this case, a "buy-and-bust" operation by the police, where the possession count "flows directly" from the sale count, and where defendant was sentenced to identical concurrent terms on both counts, a dismissal of the possession count would affect nothing but the form of the judgment, and would be an appropriate exercise of discretion under CPL 300.40 (3) (a) (People v Gaul, 63 A.D.2d 563, lv denied 45 N.Y.2d 780; People v Evans, 70 A.D.2d 816; People v Harrison, 139 A.D.2d 422).

Concur — Sandler, J.P., Asch, Kassal, Rosenberger and Wallach, JJ.