The People of the State of New York, Respondent, v. Genaro Lozano, Appellant

The People of the State of New York, Respondent, v Genaro Lozano, Appellant. [722 NYS2d 859] [MAJORITY] —Judgment, Supreme Court, New York County (Marcy Kahn, J.), rendered March 10, 1998, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the first and third degrees and criminal use of drug paraphernalia in the second degree, and sentencing him, as a second felony offender, to concurrent terms of 15 years to life, 4V2 to 9 years and 1 year, unanimously affirmed. The court properly refused to submit to the jury the lesser included offense of criminal possession of a controlled substance in the seventh degree, the only such offense requested by defendant, since there was no reasonable view of the evidence to warrant such a submission (see, People v Scarborough, 49 NY2d 364). Moreover, the jury’s verdict on the paraphernalia count establishes that it rejected the factual theory under which defendant sought submission of seventh-degree possession (see, People v Ruiz, 223 AD2d 418, lv denied 88 NY2d 853). Concur— Sullivan, P. J., Williams, Andrias, Rubin and Friedman, JJ.