People v Tineo
2005 NY Slip Op 01660 [16 AD3d 165]
March 8, 2005
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 18, 2005


The People of the State of New York, Respondent,
v
Edward Tineo, Appellant.

[*1]

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered April 2, 2001, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 5 to 10 years, unanimously affirmed.

The court properly declined to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense. Given the large quantity of drugs possessed by defendant, their packaging, and the police observation of defendant making what appeared to be a sale immediately prior to his arrest, there was no reasonable view of the evidence to support a finding that defendant's possession was without intent to sell (see People v Scarborough, 49 NY2d 364 [1980]; People v Henry, 272 AD2d 238 [2000], lv denied 95 NY2d 890 [2000]). Concur—Tom, J.P., Saxe, Ellerin, Nardelli and Sweeny, JJ.