People v. Rice

Mar 19, 2004
Versions:5 A.D.3d 1074
773 N.Y.S.2d 695

Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered June 21, 2002. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of two counts of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1], [12]) arising from his possession of more than one-half ounce of cocaine with the intent to sell it. Defendant contends that, because both counts involve the same cocaine, this Court should modify the judgment as a matter of discretion in the interest of justice by reversing that part convicting him of one of the two counts. We decline to do so, inasmuch as the two counts are separate crimes (see People v Campbell, 175 AD2d 612 [1991], lv denied 78 NY2d 1074 [1991]; see also People v Thomas, 174 AD2d 994 [1991], lv denied 78 NY2d 1015 [1991]). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Wisner, Hurlbutt and Gorski, JJ.