People v. McKenzie

The Court Discusses Dismissal of a Lesser Offence where it was included in a Greater Offense
The defendant appealed his conviction of one count of criminal sale of a controlled substance in the third degree pursuant to section 220.39 of the Penal Law, three counts of criminal possession of a controlled substance in the third and seventh degrees in pursuant to section 220.26 and 220.03 of the Penal Law and unlawful possession of marijuana pursuant to section 221.05 Penal Law. The defendant was sentenced to one year on the seventh degree count of possession, concurrent terms of 1 to 3 years on the third degree count of possession and sale and $100 fine for unlawful possession of marijuana. The defendant’s conviction stemmed from the sale of a glassine envelope that was witnessed by two police officers. The police officers who witnessed the transaction recovered the envelope containing a bag of heroin. Further, a paper bag which the defendant possessed contained 19 glassine envelope of heroin along with a small quantity of marijuana.

The Appellate Division of the Supreme Court held that the criminal possession of a controlled substance in the seventh degree should have been dismissed as lesser included offense of criminal possession in the third degree according to section 300.40(3)(b) of the Criminal Procedure Law. Possession of heroin by the defendant was not connected with sale of the drug to charge to warrant the dismissal of the count for possession of a controlled substance in the third degree.

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