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PEOPLE v. MARTINEZ

83 N.Y.2d 26 (1993)

628 N.E.2d 1320

607 N.Y.S.2d 610

The People of the State of New York, Respondent, v. Andre Martinez, Appellant.

Court of Appeals of the State of New York.

Decided December 21, 1993.

Attorney(s) appearing for the Case

Irma Ascher, New York City, and Philip L. Weinstein for appellant.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicoletta J. Caferri and Steven J. Chananie of counsel), for respondent.

Chief Judge KAYE and Judges TITONE and SMITH concur with Judge HANCOCK, JR.; Judge LEVINE dissents and votes to affirm in a separate opinion in which Judges SIMONS and BELLACOSA concur.

HANCOCK, JR., J.

Defendant was convicted by a jury of, among other crimes, one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). In submitting the criminal possession count, the trial court instructed the jury that it could find defendant guilty of either actual possession or constructive possession and that it could find that defendant knowingly possessed...

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