People v. CarrPeople v. Carr
Appeal from a judgment of the County Court, Otsego County, rendered November 4, 1974, upon a verdict convicting thе defendant of the crime of criminal sale of a controlled substance in the fifth degree. We find no reversible error present in the instant record and the judgment should, therefore, be affirmed. There is no merit in the contention that the trial court should have granted defendant’s request to a charge of possеssion seventh degree as a lesser included offense pursuant to CPL 300.50 (subds 1, 2). Under these subdivisions the trial court must, in additiоn to submitting the offense charged, submit in the alternative, any lesser included offense if, but only if, there is a "reasonable view of the evidence” that would support a finding that the accused committed the lesser сrime but did not commit the greater. The section, moreover, goes on to hold that "If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense.” (Emphasis suрplied.) An examination of the record clearly reveals that the charge of sale was unquestiоnably established and there is not present a serious question that defendant could have been guilty of рossession (the lesser crime) and not the sale (the greater crime). In short, there is no "reasonable view” of the evidence in the record that would support a verdict of guilty of possession but not of sаle. From the testimony and proof elicited defendant could not under any "reasonable view” thereof emerge merely as an agent of the buyer innocent of selling (see People v Lindsey,