People v. Soto

254 A.D.2d 95, 679 N.Y.S.2d 281, 1998 N.Y. App. Div. LEXIS 10685

Opinion

Judgment, Supreme Court, New York County (Budd Goodman, J., at suppression motion; William Leibovitz, J., at jury trial and sentence), rendered September 29, 1995, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to concurrent terms of 4V2 to 9 years, unanimously affirmed.

The trial court properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included offense because there was no reasonable view of the evidence that defendant possessed the additional glassine envelopes of heroin without intent to sell them (see, People v Gray, 232 AD2d 179, lv denied 89 NY2d 1093).

The motion court correctly denied defendant’s motion to suppress without a hearing where defendant’s moving papers failed to allege a factual dispute regarding the legality of the police officer’s conduct (see, People v Mendoza, 82 NY2d 415).

We have considered and rejected defendant’s challenges to the court’s supplemental jury instructions. Concur — Lerner, P. J., Sullivan, Mazzarelli, Andrias and Saxe, JJ.