Opinion
July 23, 1990
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the judgment is affirmed.
While the trial court submitted the crimes of criminal sale of a controlled substance in the first and second degrees to the jury, the defendant contends that his request to charge criminal sale of a controlled substance in the third degree as a lesser included offense should have been granted. However, since the defendant was convicted of criminal sale of a controlled substance in the first degree, any error was harmless (see, People v. Richette, 33 N.Y.2d 42, 45-46; cf., People v. Green, 56 N.Y.2d 427, 435-436).
The defendant's other contention is unpreserved for appellate review (see, CPL 470.05; People v. Nuccie, 57 N.Y.2d 818), and we decline to review it in the exercise of our interest of justice jurisdiction. Thompson, J.P., Lawrence, Harwood and Balletta, JJ., concur.