People v. Scarborough

• Citation: 426 N.Y.S.2d 224,402 N.E.2d 1127,49 N.Y.2d 364
• Parties: , 402 N.E.2d 1127 The PEOPLE of the State of New York, Respondent, v. Cynthia SCARBOROUGH, Appellant. The PEOPLE of the State of New York, Respondent, v. Calvin CODRINGTON, Appellant.
• Decision Date: 12 February 1980
• Court: New York Court of Appeals

Page 224

426 N.Y.S.2d 224

49 N.Y.2d 364, 402 N.E.2d 1127

The PEOPLE of the State of New York, Respondent, v. Cynthia SCARBOROUGH, Appellant.

The PEOPLE of the State of New York, Respondent, v. Calvin CODRINGTON, Appellant.

Court of Appeals of New York.

Feb. 12, 1980.

Nancy S. Hobbs and William E. Hellerstein, New York City, for Cynthia Scarborough, appellant

Julia Pamela Heit, New York City, for Calvin Codrington, appellant.

Robert M. Morgenthau, Dist. Atty. (Joyce P. Adolfsen and Robert M. Pitler, New York City, of counsel), for respondent.

OPINION OF THE COURT

JONES, Judge.

These appeals, arising out of a narcotics transaction, require us to determine whether the trial court erred in refusing defendants' request to submit counts of possession of a controlled substance as lesser included offenses of the charge of criminal sale. We conclude that no such submission was required when no rational basis appears in the record for rejection by the jury of that portion of the undercover officer-buyer's testimony that would have established a drug sale but acceptance by the jury of so much of his testimony as would have supported a finding of possession only.

Each of defendants stands convicted of criminal sale of a controlled substance in the second degree in violation of subdivision 1 of section 220.41 of the Penal Law following trial on a joint indictment charging them with the criminal sale offense as well as with the crimes of criminal possession of a controlled substance in the third degree (Penal Law, § 220.16) and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.06).

The People's case rested largely on the testimony of undercover Police Officer Hewitt, who testified that on June 9, 1976 he obtained a quantity of heroin from defendant Scarborough in exchange for $200 in the following manner: Expecting to consummate a purchase of the drug, which had previously been arranged, Hewitt entered a storefront bearing the name "Last Chance Shoe Shine Parlor" on the afternoon of the day in question where he found defendant Codrington, who was known to the officer. As he had approached the storefront he had observed defendant Scarborough seated with another girl outside the front of the store next door. Hewitt told Codrington that he wished to buy 20 bags of heroin, to which the latter assented. Hewitt then reminded Codrington that he had been promised "something from the last time", and Codrington replied that he would give him 5, that the dope was not his but another's and that if it were his he would give Hewitt 30. Thereupon Codrington walked to the door and called defendant Scarborough to come inside. As she entered Codrington went to a cabinet in the kitchen, took out a brown paper bag and gave it to the girl, directing her to give Hewitt 25 glassine envelopes. Codrington then returned to a conversation with another person in the premises, and Scarborough removed glassine envelopes from the bag, took $200 tendered by Hewitt and delivered the 25 envelopes to him, whereupon the undercover agent put the envelopes containing a substance later identified as more than one- eighth ounce of heroin in his pocket and left, calling out a farewell to Codrington.

Officer Hewitt's testimony was corroborated in part by that of a back-up officer who had observed the movements of the undercover agent and of defendants from a vantage point in an apartment building across the street and by photographs which he had taken of them as each was outside, entering or exiting the storefront at the time of the events to which Hewitt testified.

Each defendant testified that he or she had been at or about the Last Chance Shoe Shine Parlor regularly during June, 1976 and possibly had been there on June 9; both however denied that they had been involved in the heroin transaction described by Hewitt. Codrington denied having called Scarborough into the storefront to make a sale, having sold heroin to Hewitt, having handed a brown paper bag containing heroin to Scarborough and having told Hewitt he would give him 30 envelopes of heroin if it had been his. When shown the glassine envelopes at the trial he testified that he had never before seen them or their contents. Scarborough for her part could not recall Codrington having handed a paper bag to her and denied that she had been told by the codefendant to give 25 envelopes to Hewitt, that she had given envelopes to him and that she had received $200 from him. She testified that the first time she had seen Hewitt was when he appeared as a witness at the trial.

Following the conclusion of the evidence the trial court submitted only the charge of criminal sale of a controlled substance to the jury and refused the defendants' request that the lesser charges of criminal possession in the third and fifth degrees alleged in the indictment also be submitted, stating that the transaction testified to "was either a sale or not" and that there was no evidence that defendants possessed the drugs for any period of time other than as part of the alleged sale. The Appellate Division rejected defendants' claim that this was error and affirmed the judgments of conviction. We concur in that determination and disposition.

The standard for determining whether a lesser included offense i. e., an offense, the commission of which is necessarily embraced in the commission of a crime of a higher degree (CPL 1.20 subd. 37) must be submitted to a jury is set forth in CPL 300.50. Subdivision 1 of that section provides, insofar as relevant: "In submitting a count of an indictment to the jury, the court in its discretion may, in addition to submitting the greatest offense which it is required to submit, submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense." Subdivision 2 provides that if the court is authorized by subdivision 1 to submit a lesser included offense and is so requested by either party it must do so.

It is apparent under these statutory provisions that lesser included offenses are not to be submitted for consideration by the jury in reaching its verdict in every case (People v. Discala, 45 N.Y.2d 38, 42, 407 N.Y.S.2d 660, 663, 379 N.E.2d 187, 190). There must exist "a reasonable view of the evidence" upon which might be predicated a conclusion that the defendant did in fact commit a lesser, but not the greater, offense; if there is no such reasonable view, a submission of lesser offenses is improper. The requirement of existence of a reasonable view of the evidence supporting a finding of commission of the lesser offense alone was introduced in the criminal procedural statute in 1970 (L.1970, ch. 996, eff. Sept. 1, 1971) and represented a substantial alteration in language from that which had appeared in sections 444 and 445 of the Code of Criminal Procedure from which it was derived. The previous statutes on their face had authorized a jury, without qualification or restriction, to find a defendant guilty of a lower degree or of a lesser included offense of the crime charged. ¹ As is apparent from the staff comments of the Temporary Commission on Revision of the Penal Law and Criminal Code which accompanied the 1970 legislation, however, enactment of present CPL 300.50, although linguistically different from its statutory predecessors, was intended merely to reflect current judicial interpretation of the prior statute and codified what was termed the "prevailing rule established in People v. Mussenden, 1955, 308 N.Y. 558, 562-563, 127 N.E.2d 551, 553-554" (Commission Staff Comment to CPL 300.50). In Mussenden this court had articulated the principle that "the submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one. * * * The trial court may not * * * permit the jury to choose between the crime charged and some lesser offense where the evidence essential to support a verdict of guilt of the latter necessarily proves guilt of the greater crime as well. With the record in that state, there is no basis in the evidence for differentiating between the several offenses and no warrant for submitting any but that charged in the indictment" (308 N.Y. p. 563, 127 N.E.2d p. 554).

In cases decided since the adoption of CPL 300.50 we have continuously given effect to the explicit requirement of existence of a reasonable basis in the evidence for a finding of guilt of the lesser count and rejection of the greater count, pointing out by recital of the relevant proof how such a result might be reached by the jury. Examination of those cases, as well as cases decided before 1970 under the Mussenden precept, reveals the evolvement of a criterion which, when applied to the proof in a particular case, answers the inquiry whether a lesser included offense should be submitted to the jury if, on the whole record, there is not some identifiable, rational basis on which the jury could reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime, then the lesser included offense may not be submitted.

Such a basis exists, for example, when the defendant by his own testimony denies only the ingredient of the criminal transaction which is a necessary component of the greater crime and either admits or does not deny the elements of the lesser offense. Thus, in People v. Malave, 21 N.Y.2d 26, 286 N.Y.S.2d 245, 233 N.E.2d 269, the court, in addition to noting "a considerable doubt as to the transactions" in consequence of the police officer's testimony,...