People v. Davis

Jones, J. (dissenting).

Relying on People v Glover (57 NY2d 61 [1982]), the majority holds Supreme Court did not err in refusing to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree. I disagree because a trial judge’s failure or refusal to charge seventh degree or simple possession as a lesser included offense in a drug case where the agency defense is properly submitted to the jury may *25lead to incongruous and deleterious results. Under the circumstances of this case, therefore,…