People v. Luther

460 N.E.2d 1099, 61 N.Y.2d 724, 472 N.Y.S.2d 614, 1984 N.Y. LEXIS 4023

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Defendant was indicted for criminal sale of a controlled substance. The Trial Judge charged criminal facilitation and criminal possession of a controlled substance as lesser included offenses, over objection as to facilitation. The jury acquitted defendant of the sale, convicted him of facilitation and therefore as instructed, did not consider possession.

The Appellate Division correctly concluded that facilitation is not a lesser included offense of sale (People v Glover, 57 NY2d 61) and that it was error to submit that charge to the jury. In purported reliance on CPL 470.15 (subd 2, par [a]), the Appellate Division reduced the invalid facilitation conviction to possession, because in its view the evidence provided proof beyond a reasonable doubt of possession. Inasmuch as possession is not a lesser included offense of facilitation, the conviction could not be so reduced. Nor may the reduction be based upon the charge of criminal sale, because defendant was acquitted of that charge. Accordingly the indictment should be dismissed (People v Mayo, 48 NY2d 245).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.