¶1— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered May 3, 1989, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.
¶2Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by reversing the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
¶3As conceded by the People, criminal possession of a controlled substance in the seventh degree is a lesser included offense of criminal possession of a controlled substance in the third degree and, under the circumstances, that count should *846have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Vargas, 155 AD2d 565; People v Rodriguez, 126 AD2d 681).
¶4We have considered the defendant’s remaining contentions and find them to be without merit. Thompson, J. P., Lawrence, Balletta and O’Brien, JJ., concur.