Opinion
August 17, 2000.
Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered July 28, 1997, which convicted defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentenced him, as a second felony offender, to 6 to 12 years imprisonment, unanimously affirmed.
James B. Golding, for respondent.
Mari Ann Connolly Sennett, for defendant-appellant.
Before: Nardelli, J.P., Ellerin, Wallach, Saxe, Buckley, JJ.
The trial court properly denied defendant's request to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree since, based upon the evidence adduced at trial, the jury could not have rationally concluded that defendant committed the lesser crime and not the greater as there was no "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 offense (see, People v. Scarborough, 49 N.Y.2d 364, 369-370; see also, People v. Palmer, 216 A.D.2d 883, lv denied 86 N.Y.2d 799; People v. Richardson, 244 A.D.2d 273, lv denied 91 N.Y.2d 1012).
We also reject defendant's claim that he received ineffective assistance of counsel for "[a]s long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v. Benevento, 91 N.Y.2d 708, 712-713). Here, counsel's strategy can be viewed as an "all-or-nothing" defense tactic (People v. Lane, 60 N.Y.2d 748).
Finally, given defendant's extensive criminal history, we find that the sentencing court did not abuse its discretion in imposing a sentence which was well below the maximum permitted (see, People v. Torres, 227 A.D.2d 242, lv denied 88 N.Y.2d 996; People v. Linares, 211 A.D.2d 504, lv denied 85 N.Y.2d 940).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.