Defendant was convicted of the crimes of criminal sale of a controlled substance in the third degree as well as criminal possession of a controlled substance in the third and seventh degrees. Our examination of the record indicates that the indictment, which contains counts of criminal sale in the third degree and criminal possession in the third and seventh degrees, clearly pertains to the charges that resulted from the defendant's arrest for selling heroin to an undercover police officer and his possession of narcotics concomitant with that sale. Therefore, we find that "[i]n that context, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent offense which, under the circumstances, should have been dismissed pursuant to CPL 300.40 (subd 3, par [b])" (People v. Evans, 70 A.D.2d 816, 817 [1st Dept 1979]; People v. Mendoza, 110 A.D.2d 570 [1st Dept 1985]). We note in passing that the People concede that this error was committed. Accordingly, we modify the judgment to dismiss the two counts of criminal possession in the seventh degree.
We have examined the other points raised by the defendant, and find them to be without merit.
Concur — Murphy, P.J., Sullivan, Ross and Rosenberger, JJ.