        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

47
KA 13-01667
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ASHODD J. PARKS, DEFENDANT-APPELLANT.


MULDOON, GETZ & RESTON, ROCHESTER (GARY MULDOON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Thomas E. Moran, J.), rendered May 20, 2013. The judgment convicted
defendant, upon a jury verdict, of criminal possession of a controlled
substance in the third degree, criminal possession of a weapon in the
second degree, criminal possession of a weapon in the third degree and
criminal possession of a controlled substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal possession of a controlled substance in the
third degree, and as modified the judgment is affirmed and a new trial
is granted on that count of the indictment.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the third degree (Penal Law § 220.16 [1]), criminal possession of a
weapon in the second degree (§ 265.03 [3]), criminal possession of a
weapon in the third degree (§ 265.02 [1]), and criminal possession of
a controlled substance in the fifth degree (§ 220.06 [5]). Contrary
to defendant’s contention, Supreme Court did not err in conducting a
Huntley hearing in his absence. The record establishes that defendant
had received the requisite warnings pursuant to People v Parker (57
NY2d 136, 141), which applies to pretrial hearings as well as trials
(see e.g. People v Jackson, 149 AD2d 969, 969, lv denied 74 NY2d 741,
reconsideration denied 74 NY2d 897), and had been told that he had a
“duty and obligation” to be present at all court appearances and
hearings. We thus conclude that defendant waived his right to be
present at the Huntley hearing (see People v Bynum, 125 AD3d 1278,
1278, lv denied 26 NY3d 927; People v Anderson, 52 AD3d 1320, 1321, lv
denied 11 NY3d 733).

     We agree with defendant, however, that the court erred in denying
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                                                         KA 13-01667

his request to charge 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. We therefore modify the judgment accordingly, and we grant a
new trial on the charge of criminal possession of a controlled
substance in the third degree. Criminal possession of a controlled
substance in the seventh degree is a lesser included offense of
criminal possession of a controlled substance in the third degree (see
People v Washington, 266 AD2d 412, 412, lv denied 94 NY2d 886), and
there is “a reasonable view of the evidence to support a finding that
the defendant committed the lesser offense but not the greater”
(People v Van Norstrand, 85 NY2d 131, 135), i.e., that defendant
possessed the cocaine but did not have the intent to sell it (cf.
People v Bond, 239 AD2d 785, 786, lv denied 90 NY2d 891).

     Finally, we reject defendant’s contention that his sentence is
unduly harsh and severe.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
