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

The PEOPLE of the State of New York, Respondent, v. Yusef HENRY, Defendant-Appellant.

Decided: May 25, 2000

SULLIVAN, P.J., ROSENBERGER, WILLIAMS, WALLACH and FRIEDMAN, JJ. William DeVinney, for Respondent. Lyssa M. Sampson, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), rendered January 5, 1998, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and fourth degrees, and sentencing him, as a second felony offender, to concurrent terms of 5 1/414 to 10 1/212 years and 3 to 6 years, respectively, unanimously affirmed.

 The court properly declined to submit criminal possession of a controlled substance in the seventh degree as a lesser included count of third-degree possession.   Viewing the evidence most favorably to defendant, there was no reasonable view that he possessed the drugs without an intent to sell them (see, People v. Scarborough, 49 N.Y.2d 364, 369-370, 426 N.Y.S.2d 224, 402 N.E.2d 1127;  see also, People v. Alvino, 71 N.Y.2d 233, 245, 525 N.Y.S.2d 7, 519 N.E.2d 808).   Defendant engaged in an unmistakably sales-related conversation and course of conduct with an undercover officer, two other potential customers, and a supplier of drugs, whereupon other drug dealers interrupted the transaction and the undercover officer purchased from them instead.   Moments later, defendant was arrested in possession of 48 crack vials, and there was no evidence suggesting possession for personal use.

 The court properly declined to deliver a limiting instruction regarding defendant's drug-related conversation with the undercover officer during the course of the crime.   This conversation constituted part of the instant crime and not an uncharged crime.