People v. Tineo

16 A.D.3d 165, 790 N.Y.S.2d 452, 2005 N.Y. App. Div. LEXIS 2233

Opinion

Judgment, Supreme Court, New York County (William Leibovitz, J), rendered April 2, 2001, 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 5 to 10 years, unanimously affirmed.

The court properly declined to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense. Given the large quantity of drugs possessed by defendant, their packaging, and the police observation of defendant making what appeared to be a sale immediately prior to his arrest, there was no reasonable view of the evidence to support a finding that defendant’s possession was without intent to sell (see People v Scarborough, 49 NY2d 364 [1980]; People v Henry, 272 AD2d 238 [2000], lv denied 95 NY2d 890 [2000]). Concur— Tom, J.P., Saxe, Ellerin, Nardelli and Sweeny, JJ.