People v. McCullough
Attorneys and Parties
Brief Summary
Criminal law—narcotics possession and intent to sell; treatment of inclusory concurrent counts on appeal.
After a jury trial in Supreme Court, Monroe County, defendant was convicted of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1] [possession with intent to sell]) and in the fourth degree (§ 220.09 [1] [possession of a narcotic drug meeting the statutory weight threshold]).
The conviction for third-degree criminal possession of a controlled substance was reversed and count 1 was dismissed; the fourth-degree conviction was affirmed.
The trial evidence was legally insufficient to prove intent to sell, a point the People conceded (see People v. Nellons). Further, the court could not reduce the top count to seventh-degree possession because seventh-degree is an inclusory concurrent count of the fourth-degree count of which defendant was also convicted (see CPL 300.30 [4] [defines "inclusory concurrent counts"]; CPL 300.40 [3] [b] [directs the treatment/dismissal of inclusory concurrent counts upon conviction of the greater count]).
Background
Defendant, a passenger in a vehicle stopped by police, was found with two bags of crack cocaine totaling 6.512 grams. A jury convicted him of third-degree possession (intent to sell) and fourth-degree possession (weight-based). On appeal, defendant challenged the sufficiency of the evidence of intent to sell; the People agreed it was insufficient.
Lower Court Decision
Supreme Court, Monroe County (Sinclair, J.) entered judgment on a jury verdict finding defendant guilty of Penal Law § 220.16 (1) and § 220.09 (1).
Appellate Division Reversal
The Appellate Division modified by reversing the third-degree possession conviction and dismissing count 1. It declined to reduce that count to seventh-degree possession because seventh-degree is an inclusory concurrent count of the affirmed fourth-degree conviction (see CPL 300.30 [4]; 300.40 [3] [b]). The judgment, as modified, was otherwise affirmed, including the sentence on the fourth-degree conviction, which was not unduly harsh or severe.
Legal Significance
Reaffirms that a third-degree possession conviction requiring intent to sell cannot stand on mere possession where the record lacks proof of intent, even with significant drug quantity. Also clarifies that when a defendant stands convicted of a greater weight-based possession count, an intent-based count that fails for insufficiency cannot be reduced to seventh-degree possession if seventh-degree is an inclusory concurrent count of the existing fourth-degree conviction under CPL 300.30 (4) and 300.40 (3) (b).
Insufficient proof of intent to sell mandates reversal of a third-degree possession conviction; courts cannot reduce to seventh-degree possession when a fourth-degree possession conviction remains, due to inclusory concurrent count rules.