—[*1]Appeal by the defendant from a judgment of the Supreme Court, Kings County (Tomei, J.), rendered August 27, 2003, convicting him of criminal sale of a controlled substance in the third degree (two counts) and conspiracy in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by vacating the conviction of conspiracy in the second degree under the thirty-seventh count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment with leave to the People, should they be so advised, to resubmit any appropriate charges arising out of the conduct underlying that count of the indictment to another grand jury; as so modified, the judgment is affirmed.

The defendant is correct that the conspiracy count of the indictment should be dismissed (see People v Dathan, 27 AD3d — [decided herewith]). Crane, J.P., Santucci, Mastro and Dillon, JJ., concur.