Opinion
December 16, 1977
Appeal from the Monroe County Court.
Present — Marsh, P.J., Dillon, Hancock, Jr., Denman and Witmer, JJ.
Judgment unanimously reversed, on the law, and a new trial granted. Memorandum: Defendant's conviction of criminal sale of a controlled substance in the third degree should be reversed and a new trial ordered. The court's refusal to charge the elements of criminal possession of a controlled substance in the seventh degree was reversible error. (People v Law, 41 N.Y.2d 307, 313-314). "The test of whether a `lesser included offense' is to be submitted is certainly not that it is probable that the crime was actually committed or even that there is substantial evidence to support such a view. It suffices that it is supportable on a rational basis or, put another way, by logical necessity". (People v Henderson, 41 N.Y.2d 233, 236.) Defense counsel during his cross-examination of the People's witness, a forensic chemist, requested production of the witness' notes in which he had recorded the results of chemical tests about which he had testified. The court's refusal to direct the production of the notes was error (People v Malinsky, 15 N.Y.2d 86; People v Rosario, 9 N.Y.2d 286). Furthermore, the court should not have permitted the prosecuting attorney to elicit on redirect examination of the chemist that defendant had made no request to have the substance tested by a chemist on her behalf. Such questions were irrelevant. Unfavorable inferences may not be drawn from the failure of the defendant to call witnesses. (People v Harris, 35 N.Y.2d 665; People v Mirenda, 23 N.Y.2d 439; People v Conklin, 39 A.D.2d 160.)