People v. Scott

221 A.D.2d 230, 633 N.Y.S.2d 957, 1995 N.Y. App. Div. LEXIS 11824

Opinion

—Judgment, Supreme Court, New York County (Franklin Weissberg, J., at hearing; Bernard Fried, J., at trial and sentence), rendered November 10, 1993, convicting defendant, after a 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 6 to 12 years, and judgment, same court (Howard Bell, J.), rendered July 22, 1994, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years to run concurrently with the above sentence, unanimously affirmed.

The trial court properly denied defendant’s request to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree since, based on the evidence developed at trial, the jury could not have rationally concluded that defendant possessed the drugs without intent to sell (People v Hernandez 215 AD2d 179). Concur—Rosenberger, J. P., Rubin, Kupferman, Asch and Mazzarelli, JJ.