| People v Scott |
| 2014 NY Slip Op 06428 [120 AD3d 1573] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDavell Scott, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered May 16, 2011. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of a controlled substance in the fifth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal possession of a controlled substance in the fifth degree (Penal Law§ 220.06 [5]). We reject defendant's contention that Supreme Court erred inrefusing to charge the jury with the lesser included offense of criminal possession of acontrolled substance in the seventh degree (§ 220.03). "A lesser includedoffense may not be submitted unless there appears on the whole record 'someidentifiable, rational basis' for the jury to reject evidence supportive of the greater crimeyet accept so much of the evidence as would establish the lesser" (People vPalmer, 216 AD2d 883, 884 [1995], lv denied 86 NY2d 799 [1995], quotingPeople v Scarborough, 49 NY2d 364, 369 [1980]). Here, the People presentedexpert testimony that the cocaine recovered from defendant weighed in excess of 1,400milligrams, which is nearly triple the weight requirement for a conviction of criminalpossession of a controlled substance in the fifth degree (see§ 220.06 [5]). Viewing the evidence in the light most favorable todefendant (see People vRivera, 23 NY3d 112, 120-121 [2014], citing People v Martin, 59 NY2d704, 705 [1983]; People vMoultrie, 100 AD3d 401, 402 [2012], lv denied 20 NY3d 1102 [2013]),we conclude that "[t]here was no basis, other than sheer speculation, for the jury to findthat the chemist inaccurately weighed the drugs, or to otherwise reject the portion of[her] testimony concerning the weight of the substance, while at the same time acceptingthe portion of [her] testimony identifying the substance" (People v Johnson, 66 AD3d537, 538 [2009]; see Moultrie, 100 AD3d at 402; Palmer, 216 AD2dat 884). We therefore conclude that there is no reasonable view of the evidence thatdefendant committed the lesser offense but not the greater (see People v Demus, 82 AD3d1667, 1668 [2011], lv denied 17 NY3d 815 [2011]; People v Bolden, 70 AD3d1352, 1353 [2010], lv denied 14 NY3d 838 [2010]). Present—Centra,J.P., Carni, Valentino and Whalen, JJ.