Opinion
January 24, 1986
Appeal from the Monroe County Court, Cornelius, J.
Present — Doerr, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: During defendant's trial on an indictment alleging a criminal sale of a controlled substance in the third degree, the trial court erroneously charged criminal possession in the sixth degree and eighth degree as lesser included offenses. "[I]t is not necessary to possess a controlled substance in order to offer or agree to sell it * * * Accordingly, possession offenses relating to controlled substances are not lesser included offenses of those crimes prohibiting their sale" (People v Cogle, 94 A.D.2d 158, 159; see, People v Glover, 57 N.Y.2d 61, 63). However, the error is harmless and does not require reversal since the jury found defendant guilty of the higher crime and never considered the lesser offenses (People v Scarincio, 95 A.D.2d 967, 969).
Our examination of the record reflects that defendant was represented by reasonably competent counsel and was not denied a fair trial (see, People v Modica, 64 N.Y.2d 828, 829). Defendant's other claims of error have been examined and found to be without merit.