THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RASHEEN TOWNSEND DEFENDANT APPELLANT (2016)

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 third degree (Penal Law § 220.16[1] ) and criminal sale of a controlled substance in the third degree (§ 220.39[1] ).  We reject the contention that the verdict is against the weight of the evidence on the issue of defendant's identity as the seller of the drugs, or on the issue of the identity and narcotic nature of the substance sold by defendant (see People v. Bleakley, 69 N.Y.2d 490, 495).  We further conclude that County Court did not err in admitting in evidence the drugs and the audiotape recording of the sale (see People v. Hawkins, 11 NY3d 484, 494;  People v. Newman, 87 AD3d 1348, 1350, lv denied 18 NY3d 926;  People v. Cleveland, 273 A.D.2d 787, 788, lv denied 95 N.Y.2d 864;  People v. Adams, 185 A.D.2d 680, 681, lv denied 80 N.Y.2d 926).

Finally, we conclude that the court did not err in refusing to charge criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) as a lesser included offense under both counts of the indictment.  Criminal possession of a controlled substance in the seventh degree is not a lesser included offense of criminal sale of a controlled substance in the third degree (see People v. Davis, 14 NY3d 20, 23;  People v. Yon, 300 A.D.2d 1127, 1128, lv. denied 99 N.Y.2d 621;  People v. Young, 249 A.D.2d 576, 578–579, lv. denied 92 N.Y.2d 908).  “One need not have dominion or control over a drug in order to offer to sell it to someone else” (Davis, 14 NY3d at 23).  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. Palmer, 216 A.D.2d 883, 884, lv denied 86 N.Y.2d 799;  see generally People v. Glover, 57 N.Y.2d 61, 63–64), but here there is no reasonable view of the evidence from which the jury could have concluded that defendant possessed the cocaine but did not intend to sell it (see People v. Fairley, 63 AD3d 1288, 1289–1290, lv denied 13 NY3d 743;  People v. Shannon, 254 A.D.2d 116, 116, lv denied 92 N.Y.2d 1054).

Frances E. Cafarell

Clerk of the Court