41 N.Y.2d 381 (1976)

When a defendant is convicted of both a greater offense and a lesser included offense arising from the same conduct, the conviction for the lesser offense must be dismissed.

Summary

Santiago was convicted of selling and possessing a dangerous drug. He argued that the informant’s identity should have been disclosed and that the possession conviction was an inclusory concurrent count of the sale conviction. The New York Court of Appeals held that the trial court properly denied disclosure of the informant’s identity after an in camera hearing. However, the Court agreed that the possession charge was a lesser included offense of the sale charge and therefore, the conviction for criminal possession must be dismissed because a defendant cannot be convicted of both selling and possessing the same drugs.

Facts

An undercover officer was introduced to Santiago by a confidential informant. Santiago sold the officer heroin. The officer saw Santiago twice more in the following months and later arrested him. Prior to trial, Santiago moved for the disclosure of the informant’s identity.

Procedural History

Santiago was convicted of third-degree criminal sale of a dangerous drug and sixth-degree criminal possession of a dangerous drug. The Appellate Division affirmed the convictions without opinion. Santiago appealed to the New York Court of Appeals.

Issue(s)

1. Whether the trial court erred in denying the defendant’s motion to disclose the identity of the confidential informant.
2. Whether the defendant’s conviction for criminal possession of a dangerous drug should be dismissed as an inclusory concurrent count of the criminal sale conviction.

Holding

1. No, because the informant’s testimony was not relevant to the defendant’s guilt or innocence.
2. Yes, because the defendant could not have committed the criminal sale without also possessing the drug, making the possession conviction a lesser included offense.

Court’s Reasoning

Regarding the informant’s identity, the Court of Appeals relied on its prior holding in People v. Goggins, stating that "the truly crucial factor in every case is the relevance of the informer’s testimony to the guilt or innocence of the accused." The court found that the trial court had properly determined, after an in camera examination of the informant, that the informant’s testimony would not have been relevant to Santiago’s defense. The court noted the general rule that defense counsel should have access to the record the judge bases his decision on, but upheld the conviction on the sale charge.

Regarding the inclusory concurrent count, the Court found the District Attorney conceded that under the facts of the case, Santiago could not have sold the drugs without also possessing them. The Court applied CPL 300.30 (subd 4), defining "inclusory concurrent counts," and CPL 300.40 (subd 3, par [b]), mandating dismissal of the lesser count upon conviction of the greater. The court stated that "[a]s these counts were ‘inclusory concurrent counts’…a verdict of guilty upon the greater is deemed a dismissal of every lesser." Therefore, the conviction for criminal possession was dismissed.