People v. Byrd

214 A.D.2d 581, 625 N.Y.S.2d 68, 1995 N.Y. App. Div. LEXIS 3483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1995
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered May 27, 1992, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The prosecutor’s conduct upon cross-examination of the defendant, while improper (see, People v Parks, 120 AD2d 920, 921; People v Williams, 112 AD2d 177; People v Ochoa, 86 AD2d 637), did not serve to deprive the defendant of his right to a fair trial. Thus, reversal is not warranted based on the prosecutor’s conduct (see, People v Williams, supra).

The defendant contends that his conviction for criminal possession of a controlled substance in the third degree must be reversed, and that count dismissed, since it was a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, for which he was also convicted. This contention is without merit. Possession offenses relating to controlled substances are not lesser-included offenses of those crimes prohibiting their sale (see, People v Burton, 104 AD2d 655, 656).

The trial court did not improvidently exercise its discretion in questioning a juror who expressed doubts as to her ability to remain fair and told the court that she felt sympathy for the defendant. A trial court is vested with broad discretion in ruling on the issue of juror prejudice (see, People v Genovese, 10 NY2d 478). Where a court determines, after reasonable inquiry, that a juror will cast aside any preconceived notion, impression, or opinion as to the guilt or innocence of an accused and render a verdict based solely upon the evidence presented at trial, that juror may be considered impartial and fit for service (see, Irvin v Dowd, 366 US 717, 723; see also, People v Genovese, 10 NY2d 478, 481-482, supra). The court’s inquiry was reasonable to ensure that the juror was impartial and fit for service.

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Pizzuto, Hart and Krausman, JJ., concur.