People v. Santiago

298 A.D.2d 283, 748 N.Y.S.2d 487, 2002 N.Y. App. Div. LEXIS 10155

Opinion

Judgment, Supreme Court, Bronx County (Efrain Alvarado, J.), rendered July 9, 1999, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 4 to 8 years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The evidence clearly established that defendant possessed the drugs recovered from his apartment (see People v Bundy, 90 NY2d 918; People v Reisman, 29 NY2d 278, 285).

The court properly refused to submit seventh-degree possession as a lesser included offense since there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater (see People v Scarborough, 49 NY2d 364, 369). There was no identifiable basis, other than speculation, for the jury to have differentiated between the segments of the proof in order to conclude that defendant possessed only part of the drugs (see People v Palmer, 216 AD2d 883, lv denied 86 NY2d 799). Concur — Andrias, J.P., Ellerin, Rubin, Friedman and Gonzalez, JJ.