Opinion
November 16, 1995
Appeal from the Supreme Court, New York County, Franklin Weissberg, J., Bernard Fried, J.
The trial court properly denied defendant's request to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree since, based on the evidence developed at trial, the jury could not have rationally concluded that defendant possessed the drugs without intent to sell ( People v Hernandez 215 A.D.2d 179).
Concur — Rosenberger, J.P., Rubin, Kupferman, Asch and Mazzarelli, JJ.