People v. McFadden

At the defendant’s first trial, the jury was deadlocked on the charge of criminal possession of a controlled substance in the third degree, but it convicted him of criminal possession of a controlled substance in the seventh degree, which is a lesser-included offense of criminal possession of a controlled substance in the third degree (see People v Johnson, 297 AD2d 822, 823 [2002]; People v Biggs, 280 AD2d 484 [2001]; People v Sutton, 289 AD2d 424 [2001]). As such, the Supreme Court erred in retrying the defendant on the higher offense of criminal possession of a controlled substance in the…