People v. Byrd

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), rendered May 27, 1992, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The prosecutor’s conduct upon cross-examination of the

The defendant contends that his conviction for criminal possession of a controlled substance in the third degree must be reversed, and that count dismissed, since it was a lesser-included offense of the crime of criminal sale of a controlled substance in the third degree, for which he was also convicted. This contention is without merit. Possession offenses relating to controlled substances are not lesser-included offenses of those crimes prohibiting their sale (see, People v Burton, 104 AD2d 655 , 656).

The trial court did not improvidently exercise its discretion in questioning a juror who expressed doubts as to her ability to remain fair and told the court that she felt sympathy for the defendant. A trial court is vested with broad discretion in ruling on the issue of juror prejudice (see, People v Genovese, 10 NY2d 478 ). Where a court determines, after reasonable inquiry, that a juror will cast aside any preconceived notion, impression, or opinion as to the guilt or innocence of an accused and render a verdict based solely upon the evidence presented at trial, that juror may be considered impartial and fit for service (see, Irvin v Dowd, 366 US 717 , 723; see also, People v Genovese, 10 NY2d 478 , 481-482, supra). The court’s inquiry was reasonable to ensure that the juror was impartial and fit for service.

The sentence imposed was not excessive (see, People v Suitte, 90 AD2d 80 ).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Bracken, J. P., Pizzuto, Hart and Krausman, JJ., concur.