Opinion
Argued December 15, 1983
Decided January 12, 1984
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department,
J. Raymond Fisher for appellant.
Sol Greenberg, District Attorney ( F. Patrick Jeffers and Lynda L. Venezia of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and the indictment dismissed.
Defendant was indicted for criminal sale of a controlled substance. The Trial Judge charged criminal facilitation and criminal possession of a controlled substance as lesser included offenses, over objection as to facilitation. The jury acquitted defendant of the sale, convicted him of facilitation and therefore as instructed, did not consider possession.
The Appellate Division correctly concluded that facilitation is not a lesser included offense of sale ( People v Glover, 57 N.Y.2d 61) and that it was error to submit that charge to the jury. In purported reliance on CPL 470.15 (subd 2, par [a]), the Appellate Division reduced the invalid facilitation conviction to possession, because in its view the evidence provided proof beyond a reasonable doubt of possession. Inasmuch as possession is not a lesser included offense of facilitation, the conviction could not be so reduced. Nor may the reduction be based upon the charge of criminal sale, because defendant was acquitted of that charge. Accordingly the indictment should be dismissed ( People v Mayo, 48 N.Y.2d 245).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur in memorandum.
Order reversed, etc.