
    First Department,
    November, 1980
    (November 6, 1980)
    The People of the State of New York, Respondent, v David Lee, Appellant.
   Judgment, Supreme Court, New York County, rendered November 1,1979, after a jury trial, convicting the defendant of criminal possession of a controlled substance in both the third and fifth degrees, and sentencing him to concurrent terms of from three to nine years on the third degree count, and, as a predicate felon, from three to six years on the fifth degree count, modified, on the law and the facts and in the exercise of discretion, to reduce the maximum on the third degree count so that the penalty on that count is three to six years, and otherwise affirmed. The defendant’s accomplice, who died after indictment, was arrested in possession of five envelopes of heroin. At the time the defendant fled into an abandoned building and threw a bag containing 27 envelopes of heroin out the window. The charge for possession with the intent to sell, being the third degree charge upon which the defendant was convicted, was based on his acting in concert with the accomplice, while the possession charge was based on the heroin envelopes thrown out of the window. Although not objected to, in answer to a question from the jury on the general subject of intent to sell, the Trial Judge may have created some confusion in including in respect thereto a reference to the evidence with respect to the heroin thrown out of the window in addition to that possessed by the accomplice. To ameliorate that situation, we reduce the maximum sentence for the third degree count so that it will be equally 'concurrent with the sentence for possession. Concur — Murphy, P. J., Kupferman, Ross, Yesawich and Carro, JJ.  