People v. Biggs

Appellate Division of the Supreme Court of New York

People v. Biggs

280 A.D.2d 484, 721 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 1188

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 5, 2001

StatusPublished

Cited by6 cases

This text of 280 A.D.2d 484 (People v. Biggs) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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People v. Biggs, 280 A.D.2d 484, 721 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 1188 (N.Y. Ct. App. 2001).

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—Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Mason, J.), rendered October 27, 1998, 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.

Ordered that the judgment is modified, on the law, by vacating 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.

The trial court properly permitted the People to present rebuttal testimony in response to evidence adduced by the defense (see, CPL 260.30 [7]; People v Harris, 57 NY2d 335, 345). While it was improper for the prosecutor to elicit testimony from the rebuttal witness concerning his involvement with a narcotics enforcement unit, any prejudice caused by this testimony was dissipated by the trial court’s prompt curative instruction (see, People v Vincent, 250 AD2d 787, 788; People v Baez, 208 AD2d 638, 639).

The defendant’s conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser-included offense of the crime of criminal possession of a controlled substance in the third degree (see, CPL 300.40 [3] [b]; People v Owens, 249 AD2d 419, 420-421; People v Hammond, 220 AD2d 684, 686). However, criminal possession of a controlled substance in the third degree is not a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, since offenses relating to the possession of controlled substances are not lesser-included offenses of crimes prohibiting their sale (see, People v Reed, 222 AD2d 459; People v Byrd, 214 AD2d 581; People v Campbell, 175 AD2d 612). Accordingly, the defendant is not entitled to dismissal of that count of the indictment charging criminal possession of a controlled substance in the third degree.

The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is without merit. S. Miller, J. P., H. Miller and Smith, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Kangs County (Mason, J.), rendered October 27, 1998, 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.

Ordered that the judgment is modified, on the law, by vacating 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.

The trial court properly permitted the People to present rebuttal testimony in response to evidence adduced by the defense (see, CPL 260.30 [7]; People v Harris, 57 NY2d 335, 345). While it was improper for the prosecutor to elicit testimony from the rebuttal witness concerning his involvement with a narcotics enforcement unit, any prejudice caused by this testimony was dissipated by the trial court’s prompt curative instruction (see, People v Vincent, 250 AD2d 787, 788; People v Baez, 208 AD2d 638, 639).

The defendant’s conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser-included offense of the crime of criminal possession of a controlled substance in the third degree (see, CPL 300.40 [3] [b]; People v Owens, 249 AD2d 419, 420-421; People v Hammond, 220 AD2d 684, 686). However, criminal possession of a controlled substance in the third degree is not a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, since offenses relating to the possession of controlled substances are not lesser-included offenses of crimes prohibiting their sale (see, People v Reed, 222 AD2d 459; People v Byrd, 214 AD2d 581; People v Campbell, 175 AD2d 612). Accordingly, the defendant is not entitled to dismissal of that count of the indictment charging criminal possession of a controlled substance in the third degree.

The defendant’s sentence is not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contention is without merit. S. Miller, J. P., H. Miller and Smith, JJ., concur.

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280 A.D.2d 484, 721 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 1188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-biggs-nyappdiv-2001.

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