Opinion
2014-09-26
The PEOPLE of the State of New York, Respondent, v. Davell SCOTT, Defendant–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Misha A. Coulson of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, VALENTINO AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict 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 in refusing to charge the jury with the lesser included offense of criminal possession of a controlled substance in the seventh degree (§ 220.03). “A lesser included offense may not be submitted unless there appears on the whole record ‘some identifiable, rational basis' for the jury to reject evidence supportive of the greater crime yet accept so much of the evidence as would establish the lesser” (People v. Palmer, 216 A.D.2d 883, 884, 629 N.Y.S.2d 354, lv. denied86 N.Y.2d 799, 632 N.Y.S.2d 513, 656 N.E.2d 612, quoting People v. Scarborough, 49 N.Y.2d 364, 369, 426 N.Y.S.2d 224, 402 N.E.2d 1127). Here, the People presented expert testimony that the cocaine recovered from defendant weighed in excess of 1,400 milligrams, which is nearly triple the weight requirement for a conviction of criminal possession of a controlled substance in the fifth degree ( see§ 220.06[5] ). Viewing the evidence in the light most favorable to defendant ( see People v. Rivera, 23 N.Y.3d 112, 120–121, 989 N.Y.S.2d 446, 12 N.E.3d 444, citing People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225; People v. Moultrie, 100 A.D.3d 401, 402, 953 N.Y.S.2d 189, lv. denied20 N.Y.3d 1102, 965 N.Y.S.2d 798, 988 N.E.2d 536), we conclude that “[t]here was no basis, other than sheer speculation, for the jury to find that 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 accepting the portion of [her] testimony identifying the substance” (People v. Johnson, 66 A.D.3d 537, 538, 887 N.Y.S.2d 79; see Moultrie, 100 A.D.3d at 402, 953 N.Y.S.2d 189; Palmer, 216 A.D.2d at 884, 629 N.Y.S.2d 354). We therefore conclude that there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater ( see People v. Demus, 82 A.D.3d 1667, 1668, 919 N.Y.S.2d 664, lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 804, 954 N.E.2d 95; People v. Bolden, 70 A.D.3d 1352, 1353, 895 N.Y.S.2d 628, lv. denied14 N.Y.3d 838, 901 N.Y.S.2d 145, 927 N.E.2d 566).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.