People v. Williams

49 A.D.2d 513, 370 N.Y.S.2d 90, 1975 N.Y. App. Div. LEXIS 10351

Opinion

Judgment, Supreme Court, New York County, rendered a possession of a dangerous drug in the fourth degree, unanimously reversed, on the law, and the indictment dismissed. After allegedly selling a single glassine envelope containing heroin to an undercover officer, defendant was charged with criminally selling a dangerous drug, criminal possession of a dangerous drug with intent to sell and criminal possession of a dangerous drug in excess of a particular weight. Over objection, the Trial Judge submitted all three counts to the jury. After considerable deliberation, it convicted defendant only of simple possession and acquitted him of the other two counts. Defendant correctly contends, and the District Attorney now concedes, that, in the circumstances of this case, the submission of the lesser included possessory counts was erroneous, since no reasonable view of the evidence would support the finding that defendant possessed drugs but did not sell them. (CPL 300.50; People v Mussenden, 308 NY 558.) Concur— Stevens, P. J., Kupferman, Murphy, Tilzer and Capozzoli, JJ.