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. However, as the People concede, criminal possession in the seventh degree is a lesser inclusory offense which, under the circumstances herein, should have been dismissed pursuant to CPL 300.40 (3) (b). ( See, People v. Evans, 70 A.D.2d 816.)
Concur. — Murphy, P.J., Ross, Lynch and Milonas, JJ.