People v. Rosa

201 A.D.2d 308, 608 N.Y.S.2d 835, 1994 N.Y. App. Div. LEXIS 1021

Opinion

Judgment, Supreme Court, Bronx County (Ira Globerman, J., at suppression hearing; William H. Wallace, III, J., at trial and sentence), rendered June 10, 1992, convicting defendant, after jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously reversed, on the law, and the matter remanded for new trial.

As the People concede, the trial court erred in refusing to charge the lesser included offense of criminal possession of a controlled substance in the seventh degree, since, viewing the evidence in a light favorable to defendant, it cannot be said that every hypothesis but guilt of the higher crime was excluded (CPL 300.50 [2]; see, People v Johnson, 45 NY2d 546, 550). Concur — Sullivan, J. P., Rosenberger, Kupferman and Ross, JJ.