People v. Riley

Appellate Division of the Supreme Court of New York

People v. Riley

116 A.D.2d 1028, 498 N.Y.S.2d 644, 1986 N.Y. App. Div. LEXIS 51811

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

DecidedJanuary 24, 1986

StatusPublished

This text of 116 A.D.2d 1028 (People v. Riley) 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.

Bluebook

People v. Riley, 116 A.D.2d 1028, 498 N.Y.S.2d 644, 1986 N.Y. App. Div. LEXIS 51811 (N.Y. Ct. App. 1986).

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Opinion

Judgment unanimously affirmed. Memorandum: During defendant’s trial on an indictment [1029]*1029alleging a criminal sale of a controlled substance in the third degree, the trial court erroneously charged criminal possession in the sixth degree and eighth degree as lesser included offenses. "[I]t is not necessary to possess a controlled substance in order to offer or agree to sell it * * * Accordingly, possession offenses relating to controlled substances are not lesser included offenses of those crimes prohibiting their sale” (People v Cogle, 94 AD2d 158, 159; see, People v Glover, 57 NY2d 61, 63). However, the error is harmless and does not require reversal since the jury found defendant guilty of the higher crime and never considered the lesser offenses (People v Scarincio, 95 AD2d 967, 969).

Our examination of the record reflects that defendant was represented by reasonably competent counsel and was not denied a fair trial (see, People v Módica, 64 NY2d 828, 829). Defendant’s other claims of error have been examined and found to be without merit. (Appeal from judgment of Monroe County Court, Cornelius, J. — criminal sale of controlled substance, third degree.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

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Judgment unanimously affirmed. Memorandum: During defendant’s trial on an indictment [1029]*1029alleging a criminal sale of a controlled substance in the third degree, the trial court erroneously charged criminal possession in the sixth degree and eighth degree as lesser included offenses. "[I]t is not necessary to possess a controlled substance in order to offer or agree to sell it * * * Accordingly, possession offenses relating to controlled substances are not lesser included offenses of those crimes prohibiting their sale” (People v Cogle, 94 AD2d 158, 159; see, People v Glover, 57 NY2d 61, 63). However, the error is harmless and does not require reversal since the jury found defendant guilty of the higher crime and never considered the lesser offenses (People v Scarincio, 95 AD2d 967, 969).

Our examination of the record reflects that defendant was represented by reasonably competent counsel and was not denied a fair trial (see, People v Módica, 64 NY2d 828, 829). Defendant’s other claims of error have been examined and found to be without merit. (Appeal from judgment of Monroe County Court, Cornelius, J. — criminal sale of controlled substance, third degree.) Present — Doerr, J. P., Boomer, Green, O’Donnell and Schnepp, JJ.

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Bluebook (online)

116 A.D.2d 1028, 498 N.Y.S.2d 644, 1986 N.Y. App. Div. LEXIS 51811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-riley-nyappdiv-1986.

Opinion

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