PEOPLE v. RICHARDSON

The court appropriately exercised its discretion in denying defendant's application to call the observing officer at the suppression hearing. The testimony at the hearing established that defendant's arrest was based on a radio report of an observed drug transaction by a fellow officer ( see, People v Lypka, 36 N.Y.2d 210, 213), and no substantial issues were raised as to constitutionality of the police actions ( see, People v Williams, 205 A.D.2d 717).

The court also properly denied defendant's request to charge on criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree, because no reasonable view of the evidence, in particular the large quantity of crack vials possessed by defendant, would permit a finding of possession without intent to sell ( see, People v. Scarborough, 49 N.Y.2d 364, 369-370).

Concur — Murphy, P.J., Sullivan, Wallach, Tom and Andrias, JJ.