
    The People of the State of New York, Respondent, v Michael Lapis, Appellant.
   Judgment unanimously modified by dismissing the conviction for criminal possession in the sixth degree under count one of the indictment and, as so modified, affirmed. Simons, J., not participating. Memorandum: The crime of criminal possession of a controlled substance in the sixth degree was a lesser included offense of criminal sale in the fifth degree and the verdict of guilty on the latter count is deemed a dismissal of the former (CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847; People v Lugo, 53 AD2d 650). (Appeal from judgment of Erie Supreme Court— criminal possession controlled substance, sixth degree.) Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.  