PEOPLE v. OLIVERA


45 A.D.3d 154 (2007)

842 N.Y.S.2d 390

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BENITO OLIVERA, Appellant.

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

September 13, 2007.


Attorney(s) appearing for the Case

Steven Banks, The Legal Aid Society, New York City (John Schoeffel of counsel), and Arnold & Porter LLP, New York City (Ken L. Hashimoto of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Angela DiGiglio, Michael S. Morgan and Megan S. Mueller of counsel), for respondent.

SAXE, J.P., and FRIEDMAN, J., concur with KAVANAGH, J.; WILLIAMS and BUCKLEY, JJ., dissent in a separate opinion by WILLIAMS, J.


OPINION OF THE COURT

KAVANAGH, J.

Defendant is entitled to a new trial because the trial court erred by denying his request to charge the jury on the lesser included offense of criminal possession of a controlled substance in the seventh degree.

On March 31, 2004, the New York City Police Department assigned a field team of 10 to 12 police officers to conduct a buy/bust drug operation in the vicinity of Lexington Avenue and 110th Street. A police...

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