
    The People of the State of New York, Respondent, v William Mendoza, Appellant.
   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 AD2d 816.) Concur. — Murphy, P. J., Ross, Lynch and Milonas, JJ.  