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PEOPLE v. DAVIS

No. 172

14 N.Y.3d 20 (2009)

2009 NY Slip Op 8676

896 N.Y.S.2d 707

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE DAVIS, Appellant.

Court of Appeals of New York.

Decided November 24, 2009.

Attorney(s) appearing for the Case

Office of the Appellate Defender, New York City (Sara Gurwitch and Richard M. Greenberg of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Vincent Rivellese and Patrick J. Hynes of counsel), for respondent.

Chief Judge LIPPMAN and Judges GRAFFEO, READ and SMITH concur with Judge CIPARICK; Judge JONES dissents and votes to reverse in a separate opinion in which Judge PIGOTT concurs.

OPINION OF THE COURT

CIPARICK, J.

On this appeal, we are asked to determine whether it was error for Supreme Court to refuse to charge criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal sale of a controlled substance in the third degree when an agency defense was properly submitted to the jury. Applying the test articulated in People v Glover (57 N.Y.2d 61

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