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REQUEST TO SUBMIT CPCS SEVENTH DEGREE TO THE JURY AS A LESSER INCLUDED OFFENSE OF CPCS FIFTH DEGREE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED ON THAT COUNT (FOURTH DEPT).

The Fourth Department determined the request to submit Criminal Possession of a Controlled Substance (CPCS) seventh degree to the jury as a lesser included offense of COCS fifth degree should have been granted:

We agree with defendant, however, that the court erred in refusing to submit CPCS in the seventh degree (Penal Law § 220.03) to the jury as a lesser included offense of CPCS in the fifth degree. A party who seeks to have a lesser included offense submitted to the jury must satisfy a two-pronged test: “First, the crime must be a lesser included offense within the meaning of Criminal Procedure Law § 1.20 (37) . . . Second, the party making the request for a charge-down must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser included offense but not the greater’ ” … . Both prongs are satisfied here. CPCS in the seventh degree is a lesser included offense of CPCS in the fifth degree under Penal Law § 220.06 (5)  … . Furthermore, there is a reasonable view of the evidence that defendant committed the lesser offense but not the greater … . A person is guilty of CPCS in the fifth degree when he or she knowingly and unlawfully possesses cocaine weighing 500 milligrams or more (see § 220.06 [5]), whereas a person is guilty of CPCS in the seventh degree when he or she knowingly and unlawfully possesses a controlled substance (see § 220.03). In his trial testimony, defendant denied possessing the crack rock, but admitted to possessing the dime bags. A forensic chemist testified that the weight of the crack rock was greater than the aggregate weight of the pure cocaine in the rock and the dime bags combined. If the jury credited defendant’s testimony with respect to the rock, it reasonably could have found that defendant possessed some amount of cocaine, but that the People failed to establish that he possessed cocaine weighing 500 milligrams or more. We therefore modify the judgment by reversing that part convicting defendant of CPCS in the fifth degree, and we grant defendant a new trial on that count. People v Patterson, 2019 NY Slip Op 04825, Fourth Dept 6-14-19

 

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