Opinion
May 9, 1994
Appeal from the County Court, Westchester County (Pirro, J.).
Ordered that the judgment is modified, on the law, by reversing the convictions of criminal possession of a controlled substance in the seventh degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Contrary to the defendant's contention, we find that the trial court's polling of the jury was a proper exercise of its discretion, as it merely provided a meaningful response to the jury's request (see, e.g., People v. Agosto, 73 N.Y.2d 963; People v. Gadson, 161 A.D.2d 795; People v. Carrero, 140 A.D.2d 533). Further, the trial court's interested witness charge was balanced. It is well settled that where, as here, the defendant testifies at the trial, it is proper for the court to charge the jury that the defendant was an interested witness (see, People v Agosto, supra; People v. Ochs, 3 N.Y.2d 54). The charge was balanced insofar as the court instructed the jury that it was free to find, as a matter of fact, that any witnesses, including the prosecution's witness, were also interested witnesses (see, People v. Grant, 186 A.D.2d 267; People v. Olden, 173 A.D.2d 867; People v. Luberoff, 150 A.D.2d 802). Moreover, there is no requirement that the trial court instruct the jury that the prosecution's police witnesses are interested witnesses as a matter of law (see, People v. Holly, 184 A.D.2d 581; People v Suarez, 125 A.D.2d 350).
As the People correctly concede, 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. Bell, 184 A.D.2d 774; People v Perez, 154 A.D.2d 406; People v. McBee, 143 A.D.2d 773). Therefore, the defendant's convictions of criminal possession of a controlled substance in the seventh degree (two counts) are dismissed (see, CPL 300.40 [b]).
The defendant's remaining contentions are either unpreserved for appellate review (see, CPL 470.05; People v. Acosta, 182 A.D.2d 768), or without merit. Thompson, J.P., Sullivan, Ritter and Friedmann, JJ., concur.