People v. Weathersby

44 N.Y.2d 686 (1978)

The People of the State of New York, Respondent, v. Jerome Weathersby, Appellant.

Court of Appeals of the State of New York.

Argued February 16, 1978.

Decided March 28, 1978.

Kurt T. Sajda and Nathaniel A. Barrell for appellant.

Edward C. Cosgrove, District Attorney (John J. De Franks of counsel), for respondent.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

*687MEMORANDUM.

The order of the Appellate Division should be affirmed.

Inasmuch as the offenses of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree are both class A-III felonies subject to the same penal sanctions, the former cannot be a lesser inclusory concurrent count with respect to the latter within the meaning of CPL 300.40 (subd 3, par [b]). CPL 300.40 makes provision with respect to lesser and greater counts but not for equivalent counts. Nor do we find any merit to defendant's contention that there is insufficient evidence to sustain his convictions.

Order affirmed.