Defendant was convicted of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third and seventh degrees. The sale of one glassine envelope on March 27, 1982 was witnessed by two New York City Housing Police officers, who recovered the envelope containing a "quarter bag" of heroin and, shortly thereafter, a paper bag from defendant, which contained an additional 19 glassine envelopes of heroin and one tinfoil packet of marihuana. The first trial resulted in a hung jury and, following retrial, defendant was convicted of all counts.
Under the circumstances, clearly, as the People concede, the conviction for criminal possession of a controlled substance in the seventh degree is an inclusory concurrent count which should have been dismissed pursuant to CPL 300.40 (3) (b) as a lesser included offense of criminal possession in the third degree (see, People v Williams, 129 A.D.2d 493; People v Holman, 117 A.D.2d 534; People v Mendoza, 110 A.D.2d 570). Under the facts of this case, defendant's possession of a controlled substance with intent to sell was not concomitant with the sale so as to warrant the exercise of discretion dismissing the count for criminal possession of a controlled substance in the third degree (People v Evans, 70 A.D.2d 816; People v Barona, 69 A.D.2d 797; People v Gaul, 63 A.D.2d 563, lv denied 45 N.Y.2d 780; People v Outlaw, 63 A.D.2d 572).
We have examined defendant's remaining contentions and find them lacking in merit.
Concur — Murphy, P.J., Sandler, Milonas, Kassal and Ellerin, JJ.