People v. Ayoub

289 A.D.2d 413, 734 N.Y.S.2d 893, 2001 N.Y. App. Div. LEXIS 12223

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 2001
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered June 18, 1999, convicting him of criminal sale of a controlled substance in the third degree (two counts) and criminal possession of a controlled substance in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15 [5]).

Offenses related to possession of controlled substances are not lesser-included offenses of those crimes prohibiting their sale. Therefore, the defendant’s conviction of criminal possession of a controlled substance in the fifth degree is not a lesser-included offense of criminal sale of controlled substance in the third degree subject to dismissal pursuant to CPL 300.40 (3) (b) (see, People v Reed, 222 AD2d 459; People v Teixeira, 101 AD2d 818). Friedmann, J. P., Smith, Adams and Townes, JJ., concur.