A police officer using binoculars observed defendant delivering glassine envelopes containing a white powdery substance to two persons in exchange for money. Defendant secreted a number of such envelopes, held together with a rubber band, behind the phone in a nearby telephone booth. After arresting defendant, the backup officer found 10 glassine envelopes containing cocaine inside a small circular hole near the top of the phone booth.
This evidence was sufficient to support defendant's conviction of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), i.e., possession with intent to sell.
However, the court erred in not dismissing the count charging criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). As the District Attorney properly concedes, criminal possession of a controlled substance in the seventh degree is an inclusory concurrent count (CPL 300.30) of criminal possession of a controlled substance in the third degree, of which defendant was also convicted. As such, the inclusory count should have been dismissed (CPL 300.40 [b]; People v. Williams, 67 A.D.2d 265, affd 50 N.Y.2d 996; People v Gaul, 63 A.D.2d 563). Accordingly, the conviction of criminal possession of a controlled substance in the seventh degree should be reversed, and the one-year sentence vacated.
Concur — Sullivan, J.P., Asch, Fein, Kassal and Ellerin, JJ.