THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ASHODD PARKS DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reversing that part convicting defendant of criminal possession of a controlled substance in the third degree, and as modified the judgment is affirmed and a new trial is granted on that count of the indictment.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ), criminal possession of a weapon in the second degree (§ 265.03[3] ), criminal possession of a weapon in the third degree (§ 265.02[1] ), and criminal possession of a controlled substance in the fifth degree (§ 220.06[5] ).  Contrary to defendant's contention, Supreme Court did not err in conducting a Huntley hearing in his absence.  The record establishes that defendant had received the requisite warnings pursuant to People v. Parker (57 N.Y.2d 136, 141), which applies to pretrial hearings as well as trials (see e.g. People v. Jackson, 149 A.D.2d 969, 969, lv denied 74 N.Y.2d 741, reconsideration denied 74 N.Y.2d 897), and had been told that he had a “duty and obligation” to be present at all court appearances and hearings.  We thus conclude that defendant waived his right to be present at the Huntley hearing (see People v. Bynum, 125 AD3d 1278, 1278, lv denied 26 NY3d 927;  People v. Anderson, 52 AD3d 1320, 1321, lv denied 11 NY3d 733).

We agree with defendant, however, that the court erred in denying his request to charge criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) as a lesser included offense of criminal possession of a controlled substance in the third degree.  We therefore modify the judgment accordingly, and we grant a new trial on the charge of criminal possession of a controlled substance in the third degree.  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 (see People v. Washington, 266 A.D.2d 412, 412, lv denied 94 N.Y.2d 886), and there is “a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater” (People v. Van Norstrand, 85 N.Y.2d 131, 135), i.e., that defendant possessed the cocaine but did not have the intent to sell it (cf.  People v. Bond, 239 A.D.2d 785, 786, lv denied 90 N.Y.2d 891).

Finally, we reject defendant's contention that his sentence is unduly harsh and severe.

Frances E. Cafarell

Clerk of the Court