People v. Luther

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Defendant was indicted for criminal sale of a controlled substance. The Trial Judge charged criminal facilitation and criminal possession of a controlled substance as lesser included offenses, over objection as to facilitation. The jury acquitted defendant of the sale, convicted him of facilitation and therefore as instructed, did not consider possession.

The Appellate Division correctly concluded that facilitation is not a lesser included offense of sale (People v Glover, 57 NY2d…