Opinion
February 8, 1994
Appeal from the Supreme Court, Bronx County, Ira Globerman, J., William H. Wallace, III, J.
As the People concede, the trial court erred in refusing to charge the lesser included offense of criminal possession of a controlled substance in the seventh degree, since, viewing the evidence in a light favorable to defendant, it cannot be said that every hypothesis but guilt of the higher crime was excluded (CPL 300.50; see, People v. Johnson, 45 N.Y.2d 546, 550).
Concur — Sullivan, J.P., Rosenberger, Kupferman and Ross, JJ.