THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DAVELL SCOTT DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[5] ).   We reject defendant's contention that Supreme Court erred in refusing to charge the jury with the lesser included offense of criminal possession of a controlled substance in the seventh degree (§ 220.03).  “A lesser included offense may not be submitted unless there appears on the whole record ‘some identifiable, rational basis' for the jury to reject evidence supportive of the greater crime yet accept so much of the evidence as would establish the lesser” (People v. Palmer, 216 A.D.2d 883, 884, lv denied 86 N.Y.2d 799, quoting People v. Scarborough, 49 N.Y.2d 364, 369).   Here, the People presented expert testimony that the cocaine recovered from defendant weighed in excess of 1,400 milligrams, which is nearly triple the weight requirement for a conviction of criminal possession of a controlled substance in the fifth degree (see § 220.06[5] ).   Viewing the evidence in the light most favorable to defendant (see People v. Rivera, 23 NY3d 112, 120–121, citing People v. Martin, 59 N.Y.2d 704, 705;  People v. Moultrie, 100 AD3d 401, 402, lv denied 20 NY3d 1102), we conclude that “[t]here was no basis, other than sheer speculation, for the jury to find that the chemist inaccurately weighed the drugs, or to otherwise reject the portion of [her] testimony concerning the weight of the substance, while at the same time accepting the portion of [her] testimony identifying the substance” (People v. Johnson, 66 AD3d 537, 538;  see Moultrie, 100 AD3d at 402;  Palmer, 216 A.D.2d at 884).   We therefore conclude that there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater (see People v. Demus, 82 AD3d 1667, 1668, lv denied 17 NY3d 815;  People v. Bolden, 70 AD3d 1352, 1353, lv denied 14 NY3d 838).

Frances E. Cafarell

Clerk of the Court