People v. Walker

Dec 9, 2002
Versions:300 A.D.2d 417
750 N.Y.S.2d 785

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Rooney, J.), rendered June 28, 1999, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and criminal possession of a weapon in the third degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Rienzi, J.), of that branch of the defendant’s omnibus motion which was to suppress his statements to law enforcement officials.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the hearing court properly denied that branch of his omnibus motion which was to suppress his statements to law enforcement officials, since they were made after a proper arrest on a parole violation warrant (see People v Simpkins, 292 AD2d 471, lv denied 98 NY2d 702; People v Frankos, 110 AD2d 713).

The defendant contends that the trial court should have charged criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03) as a lesser-included offense of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [12]). We disagree. The *418evidence presented established that the defendant possessed more than the amount of cocaine necessary to have committed the greater offense in connection with one of several bags of cocaine recovered in his apartment. Thus, there was no reasonable view of the evidence to support a finding that he committed the lesser offense and not the greater. Accordingly, the trial court properly declined 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 (see People v Van Norstrand, 85 NY2d 131; People v Jackson, 220 AD2d 688, 689; People v Palmer, 216 AD2d 883, 884). S. Miller, J.P., Krausman, Luciano and Cozier, JJ., concur.