Opinion
October 15, 1998
Appeal from the Supreme Court, New York County (Harold Tompkins, J.).
The 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 ( see, People v. Hernandez, 215 A.D.2d 179, lv denied 86 N.Y.2d 873).
The court's Sandoval ruling was a proper exercise of discretion, notwithstanding the number of convictions and the circumstance that these constituted defendant's entire record ( see, People v. Walker, 83 N.Y.2d 455, 459; People v. Rivera, 227 A.D.2d 205, lv denied 88 N.Y.2d 993).
The challenged portion of the prosecutor's summation, made in response to a defense argument, does not warrant reversal ( see, People v. Overlee, 236 A.D.2d 133, 136, lv denied 91 N.Y.2d 976).
We find the sentence excessive to the extent indicated.
Concur — Sullivan, J.P., Wallach, Williams and Saxe, JJ.