
    The People of the State of New York, Respondent, v Faustino Aviles, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 29, 1974, convicting him of criminally selling a dangerous drug in the third degree, criminal possession of a dangerous drug in the fourth degree and criminal possession of a dangerous drug in the sixth degree (two counts), upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the convictions of criminal possession of a dangerous drug in the fourth degree and criminal possession of a dangerous drug in the sixth degree (under count three of the indictment), and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. Under the facts of this case, defendant could not have committed the crime of criminally selling a dangerous drug in the third degree, without also having committed the crimes of criminal possession of a dangerous drug in the fourth degree and criminal possession of a dangerous drug in the sixth degree (under count three of the indictment) (see CPL 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847). Latham, Acting P. J., Cohalan, Damiani, Shapiro and Titone, JJ., concur.  