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The defendant was charged and convicted with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled substance in the seventh degree. The defendant was charged after being watched under police surveillance where officers observed that the defendant and a buyer engaged in a number of transfers of cash for glassine envelopes from a brown paper bag. The defendant was arrested and sixty-eight glassine envelopes with the same gold tape were found in the paper bag. The defendant appealed his conviction on the ground that the instructions given to the grand jury should have been limited to transactions prior to his arrest.
The Appellate Division of the Supreme Court affirmed the decision of the trial court in part and remanded the matter back to the trial court for resentencing. Crimes prior to an arrest are probative to show that the defendant was acting in concert. The defendant’s commission of prior crimes of possession and sale of a controlled substance which was observed by the police was relevant in connecting the defendant to the crime and the testimony was probative to show the manner in which the current charge was completed. In the prosecution for possession and criminal sale of controlled substance in various degrees, relevant and probative testimony with respect to observed sale transactions that occurred prior to one on which the prosecution was based did not, in absence of limiting instructions, improperly create a situation whereby it was unclear whether the defendant was convicted by jury of charged sale or prior uncharged sales, and thus such instructions were not required.
The Court also considered on the issue of how the sentence was imposed in the review of the matter. In the prosecution for criminal sale of controlled substance in third degree, criminal possession of controlled substance in third degree, criminal possession of controlled substance in fifth degree and criminal possession of controlled substance in seventh degree, it was error for the sentencing court to fail to pronounce the sentence on each count on which the defendant was convicted. Possession of a controlled substance in seventh degree was lesser and included the offense of possession of a controlled substance in the third degree; however, criminal possession of a controlled substance in fifth degree was not necessarily an inclusive count of possession in the third degree. The imposition of an undifferentiated sentence of four years to life imprisonment should be modified, on the law, to the extent of reversing the conviction of criminal possession of a controlled substance in the seventh degree and dismissing the count of the indictment, vacating the sentence and remanding the matter for resentencing.
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