PEOPLE v. SULLIVAN (1999)

Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Brian SULLIVAN, Defendant-Appellant.

Decided: October 26, 1999

ELLERIN, P.J., ROSENBERGER, WILLIAMS, WALLACH and ANDRIAS, JJ.

Yael V. Levy, for Respondent. Bruce D. Austern, for Defendant-Appellant.

Judgment, Supreme Court, Bronx County (Nicholas Iacovetta, J.), rendered April 2, 1997, 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 41/212 to 9 years, unanimously affirmed.

The trial court properly refused defendant's request to charge on criminal possession of a controlled substance in the seventh degree possession as a lesser included offense of criminal possession of a controlled substance in the third degree, because no reasonable view of the evidence would permit a finding of possession without the intent to sell (see People v. Negron, 91 N.Y.2d 788, 676 N.Y.S.2d 520, 699 N.E.2d 32; People v. Richardson, 244 A.D.2d 273, 664 N.Y.S.2d 446, lv. denied 91 N.Y.2d 1012, 676 N.Y.S.2d 140, 698 N.E.2d 969). Defendant's contentions are based on speculation and are not supported by the record. We further find that the court provided the jury with the proper legal standard regarding the definition of possession.

MEMORANDUM DECISION.

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