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

916
KA 11-01410
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DAVELL SCOTT, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MISHA A. COULSON
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered May 16, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal possession of a
controlled substance in the fifth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a controlled substance
in the fifth degree (Penal Law § 220.06 [5]). We reject defendant’s
contention that Supreme Court erred in refusing to charge the jury
with the lesser included offense of criminal possession of a
controlled substance in the seventh degree (§ 220.03). “A lesser
included offense may not be submitted unless there appears on the
whole record ‘some 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” (People v Palmer, 216 AD2d
883, 884, lv denied 86 NY2d 799, quoting People v Scarborough, 49 NY2d
364, 369). Here, the People presented expert testimony that the
cocaine recovered from defendant weighed in excess of 1,400
milligrams, which is nearly triple the weight requirement for a
conviction of criminal possession of a controlled substance in the
fifth degree (see § 220.06 [5]). Viewing the evidence in the light
most favorable to defendant (see People v Rivera, 23 NY3d 112, 120-
121, citing People v Martin, 59 NY2d 704, 705; People v Moultrie, 100
AD3d 401, 402, lv denied 20 NY3d 1102), we conclude that “[t]here was
no basis, other than sheer speculation, for the jury to find that the
chemist inaccurately weighed the drugs, or to otherwise reject the
portion of [her] testimony concerning the weight of the substance,
while at the same time accepting the portion of [her] testimony
identifying the substance” (People v Johnson, 66 AD3d 537, 538; see
                                 -2-                           916
                                                         KA 11-01410

Moultrie, 100 AD3d at 402; Palmer, 216 AD2d at 884). We therefore
conclude that there is no reasonable view of the evidence that
defendant committed the lesser offense but not the greater (see People
v Demus, 82 AD3d 1667, 1668, lv denied 17 NY3d 815; People v Bolden,
70 AD3d 1352, 1353, lv denied 14 NY3d 838).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
