Opinion
December 26, 1972
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 10, 1971, convicting him of criminally selling a dangerous drug in the third degree (on two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The facts upon which the judgment is based have not been considered to determine whether they were established, defendant not having raised any question with respect thereto. Defendant was indicted, in two counts, for criminally possessing a dangerous drug in the third degree. The trial court denied his request to charge the jury that they could find him guilty of possession of a dangerous drug in a lesser degree of the crime charged. In our opinion this was error which requires reversal and a new trial (see Code Crim. Pro., § 445; People v. Malave, 21 N.Y.2d 26). Shapiro, Acting P.J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.