People v. Malave

Defendant was charged in a nine-count indictment with the sale of narcotics; with the possession of narcotics with intent to sell, as felonies (former Penal Law, § 1751; Public Health Law, art. 33) and with the unlawful possession of nar*28cotics as a misdemeanor (former Penal Law, § 1751-a) on three separate occasions in 1964.

The trial court declined to follow the direction of section 445 of the Code of Criminal Procedure, which provides that a defendant ‘ ‘ may be found guilty of any crime, the commission of which is necessarily included” in the crime charged, and did not submit to the jury…