PEOPLE v. BIGGS (2001)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Mason, J.), rendered October 27, 1998, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

 The trial court properly permitted the People to present rebuttal testimony in response to evidence adduced by the defense (see, CPL 260.30 [7];  People v. Harris, 57 N.Y.2d 335, 345, 456 N.Y.S.2d 694, 442 N.E.2d 1205).   While it was improper for the prosecutor to elicit testimony from the rebuttal witness concerning his involvement with a narcotics enforcement unit, any prejudice caused by this testimony was dissipated by the trial court's prompt curative instruction (see, People v. Vincent, 250 A.D.2d 787, 788, 672 N.Y.S.2d 781;  People v. Baez, 208 A.D.2d 638, 639, 617 N.Y.S.2d 203).

 The defendant's conviction of criminal possession of a controlled substance in the seventh degree must be vacated since that count is a lesser-included offense of the crime of criminal possession of a controlled substance in the third degree (see, CPL 300.40[3][b];  People v. Owens, 249 A.D.2d 419, 420-421, 671 N.Y.S.2d 485;  People v. Hammond, 220 A.D.2d 684, 686, 632 N.Y.S.2d 836).   However, criminal possession of a controlled substance in the third degree is not a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, since offenses relating to the possession of controlled substances are not lesser-included offenses of crimes prohibiting their sale (see, People v. Reed, 222 A.D.2d 459, 634 N.Y.S.2d 541;  People v. Byrd, 214 A.D.2d 581, 625 N.Y.S.2d 68;  People v. Campbell, 175 A.D.2d 612, 572 N.Y.S.2d 263).   Accordingly, the defendant is not entitled to dismissal of that count of the indictment charging criminal possession of a controlled substance in the third degree.

The defendant's sentence is not excessive (see, People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675).

The defendant's remaining contention is without merit.

The defense counsel argued that the jury must be informed that the unrelated arrest was for charges which the District Attorney declined to prosecute.   The prosecutor argued, however, that eliciting such information was unnecessary, because “the case itself has no relevance to this jury”.   The court concurred, noting that “[n]othing about the underlying facts should come out”.

Nevertheless, on direct examination of the police sergeant, the prosecutor asked “what is your current assignment?” and the sergeant replied “I work for the Street Narcotics Enforcement Unit”, revealing to the jury that the unrelated arrest was in all probability related to narcotics.

The trial court found, and I concur, that the prosecutor's question was designed to elicit improper testimony, in violation of a prior court order and the prosecutor's assurances that no such information would be revealed.

As a result, the court deemed it necessary to inform the jury that the People declined to prosecute the defendant for the unrelated charges.   Irrelevant, collateral material was placed before the jury.   In view of the court's prompt complete curative instructions, reversal is unwarranted.   However, the prosecutor's intentional misconduct, in violation of a prior court order and the prosecutor's own assurances, warrants a strong admonition from this court.

S. MILLER, J.P., H. MILLER and SMITH, JJ., concur.