People v. Wallace

170 A.D.2d 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1991
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered April 19, 1989, convicting him of criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The trial court correctly denied the 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. Although criminal possession of a controlled substance in the seventh degree is a lesser-included offense of criminal possession of a controlled substance in the third degree within the meaning of CPL 1.20 (37) (see, People v Perez, 154 AD2d 406), we find no reasonable view of the evidence which would support a finding that the defendant committed the lesser offense and not the greater (see, People v Glover, 57 NY2d 61; People v Green, 56 NY2d 427). There was no evidence produced at trial which indicated that the defendant possessed the 37 vials of crack-cocaine which were recovered for personal use. Kunzeman, J. P., Kooper, Eiber and O’Brien, JJ., concur.