Opinion
April 2, 1982
Appeal from the Monroe County Court, Bergin, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: In his appeal from a judgment of conviction for criminal sale of a controlled substance in the first degree (Penal Law, § 220.43, subd 1) and criminal possession of a controlled substance in the first degree (Penal Law, § 220.21, subd 1), defendant maintains that the court erred in refusing to submit to the jury the lesser included offenses of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41, subd 1) and criminal possession of a controlled substance in the second degree (Penal Law, § 220.18, subd 1). We reject the contention. The convictions were based on the sale and possession of one plastic bag containing four separately wrapped packets of a white crystalline substance found to contain morphine. The total weight of the substance was slightly under four ounces — more than the minimum weight required to support convictions under subdivision 1 of section 220.43 Penal of the Penal Law (which at the time required at least one ounce of the substance) and subdivision 1 of section 220.21 Penal of the Penal Law (which at the time required two ounces of the substance). The expert testimony was that the several tests performed showed the contents of each package to be the same and that the substance tested contained morphine. Nothing developed in detailed cross-examination of the chemist or in other testimony suggests any evidentiary basis for a conclusion that the substance in any one of the packets differed in any respect from that in the others. Thus, if the jurors believed the chemist's testimony that the white crystalline powder tested contained morphine, there would be no "identifiable, rational basis" on which they could find that the substance in one or more of the packets contained morphine and at the same time conclude that the substance in the other packets did not. Such a finding would necessarily have depended on sheer speculation, and the court's refusal to submit the lesser included offenses was therefore proper (see People v Scarborough, 49 N.Y.2d 364, 369, 371, 372; CPL 300.50, subd 1). We have examined the other points raised on appeal and find them to be without merit.