People v. Glover, 86 N.Y.2d 172 (1995)

When the evidence of a greater offense (possession with intent to sell) and a lesser included offense (simple possession) is derived from the integrated testimony of a single witness, a charge-down to the lesser offense is not warranted unless there is a rational basis for the jury to selectively credit portions of the witness’s testimony related to simple possession while rejecting the portions related to intent to sell.

Summary

Glover was convicted of third-degree criminal possession of a controlled substance. At trial, the key evidence was the testimony of a police officer who witnessed Glover engaging in apparent narcotics transactions. Glover requested the trial court to submit to the jury the lesser included offense of seventh-degree criminal possession (simple possession). The trial court denied the request, and the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that the officer’s testimony was integrated, meaning there was no reasonable basis to reject the portion of the testimony that described the drug sales while accepting the portion related to possession. Because the evidence of possession with intent to sell and simple possession came from the same source, the court found no rational basis for the jury to selectively credit the officer’s testimony to find Glover guilty of simple possession only.

Facts

A police officer, from a vantage point in a library, observed Glover engaging in two transactions from an apartment building stoop. The officer testified that Glover retrieved a bundle from the door frame, untied it, and handed glassine envelopes to individuals in exchange for money. Four glassines containing heroin were recovered from the door frame, and $74 was recovered from Glover during the arrest. Glover argued at trial that the officer’s testimony was inconsistent and that no drugs or purchasers were apprehended. He requested a jury instruction on the lesser included offense of simple possession.

Procedural History

The trial court denied Glover’s request to charge the jury on the lesser included offense of seventh-degree criminal possession of a controlled substance. Glover was convicted of third-degree criminal possession. The Appellate Division affirmed the judgment. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

Issue(s)

Whether the trial court erred in refusing to submit seventh-degree criminal possession of a controlled substance to the jury as a lesser included offense of third-degree criminal possession of a controlled substance, pursuant to CPL 300.50.

Holding

No, because there was no reasonable view of the evidence to support a finding that Glover committed the lesser offense but not the greater offense. The officer’s testimony was integrated, and no rational basis existed to reject only the portion describing drug sales.

Court’s Reasoning

The Court of Appeals relied on CPL 300.50, which allows a court to submit a lesser included offense if there is a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater. The Court referenced its prior decision in People v. Scarborough, where it held that where proof of guilt of both the greater and lesser offenses relies on the testimony of one witness, a charge-down to the lesser offense is appropriate if it would be reasonable for the jury to reject the portion of the witness’s testimony establishing the greater offense while crediting the portion establishing the lesser offense. However, this does not apply when no identifiable record basis exists upon which the jury might reasonably differentiate between segments of a witness’ testimony, because that would force the jury to resort to speculation. The Court found the present case indistinguishable from Scarborough, because the single witness’s testimony was essential to support a verdict of guilt for both the lesser and greater offenses. The Court stated that the officer’s testimony about Glover retrieving the drugs and dealing them was precisely what established the greater offense of possession with intent to sell. Thus, the court concluded that there was no reasonable basis upon which the jury could simultaneously credit the testimony necessary to establish simple possession and reject the same testimony insofar as it established possession with intent to sell. “[T]he identical portion of that testimony constituted the proof of both defendant’s simple possession as well as the indictment count for possession with intent to sell.”