Opinion
March 13, 1995
Appeal from the County Court, Nassau County (Jonas, J.).
Ordered that the judgment is affirmed.
The evidence presented at trial was legally sufficient to establish beyond a reasonable doubt that the defendant had the requisite intent for criminal possession of a controlled substance in the third degree. The defendant was in possession of 12.312 grams, or .434 ounces, of cocaine. There was legally sufficient evidence of the element of intent to sell a controlled substance based upon the defendant's possession of this quantity of cocaine (see, People v. Nelson, 189 A.D.2d 828; People v Gaskins, 173 A.D.2d 727). Furthermore, the defendant was in possession of a large number of small plastic bags, which is consistent with the sale of the cocaine. Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of criminal possession of a controlled substance in the third degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
Furthermore, viewing the evidence adduced at the trial in the light most favorable to the prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of attempted murder in the first degree beyond a reasonable doubt. The prosecution produced evidence that the defendant had pointed his gun at a police officer and fired it (see, People v. Milbank, 187 A.D.2d 459; People v. Danielson, 184 A.D.2d 723). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (see, CPL 470.15).
The defendant's contention that the trial court erred in not charging the jury that attempted aggravated assault upon a police officer is a lesser-included offense of attempted murder in the first degree is meritless. At the time the defendant was tried, aggravated assault upon a police officer required a firearm (see, Penal Law § 120.11). Murder in the first degree did not (see, Penal Law § 125.27). A defendant is not entitled to a charge of a lesser-included offense unless, under all possible circumstances, it is impossible to commit the greater crime without concomitantly committing the lesser (see, People v. Glover, 57 N.Y.2d 61). At the time the defendant was tried, it was possible to commit the crime of attempted murder in the first degree without also committing attempted aggravated assault upon a police officer, and, therefore, the defendant was not entitled to a lesser-included-offense charge of attempted aggravated assault upon a police officer.
The prosecution adequately established that the circumstances of the custody of the cocaine taken from the defendant provided reasonable assurances of the identity and unchanged condition of the evidence (see, People v. Julian, 41 N.Y.2d 340; People v McLaurin, 196 A.D.2d 511; People v. Poulsen, 161 A.D.2d 609).
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review (see, People v. Medina, 53 N.Y.2d 951) or without merit (see, People v. Force, 5 A.D.2d 852). Thompson, J.P., Lawrence, Hart and Goldstein, JJ., concur.