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PEOPLE v. MALAVE

27 A.D.2d 943 (1967)

The People of the State of New York, Respondent, v. Flor Malave, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 17, 1967

Affirmed (Code Crim. Pro., § 542).

Benjamin, J., dissenting.

In my opinion, it was reversible error for the trial court to dismiss the count of possessing narcotics and to submit only the count of selling narcotics to the jury. A Trial Judge must submit a lesser degree or an included crime "where there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty...

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