As conceded by defendant, fifth degree possession of a controlled substance is not an inclusory concurrent count of fifth degree sale and there is no requirement that noninclusory concurrent counts be dismissed (see, CPL 300.40 [a]). However, since defendant was sentenced to identical concurrent terms for the convictions of both the fifth degree sale and possession, our dismissal of the fifth degree possessory count, as a matter of discretion, affects nothing but the form of the judgment.
On the other hand, seventh degree possession is an inclusory concurrent count of fifth degree possession which must be dismissed (see, People v. Holman, 117 A.D.2d 534).
We have examined the remaining contentions raised by defendant and find them to be without merit.
Concur — Sullivan, J.P., Asch, Milonas, Kassal and Ellerin, JJ.