
    The People of the State of New York, Respondent, v Henry Brigantti, Appellant.
   Judgment of the Supreme Court, Bronx County (Martin B. Klein, J.), rendered March 15, 1985, convicting defendant, after trial by jury, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him, as a second felony offender, respectively, to two concurrent terms of imprisonment of from 6 to 12 years and to a definite term of one year, to be served concurrently, is unanimously modified, on the law, to the extent of vacating defendant’s conviction of criminal possession of a controlled substance in the seventh degree and dismissing that count, and otherwise affirmed.

Under the facts herein, criminal possession of a controlled substance in the seventh degree was an inclusory concurrent count of criminal possession of a controlled substance in the third degree. Therefore, as the People concede, it should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Holman, 117 AD2d 534).

We have examined the other contentions raised by defendant and find them to be without merit. Concur—Sandler, J. P., Ross, Asch, Milonas and Rosenberger, JJ.  