People v. Gray

1013 an accomplice to the driver’s possession (see, Penal Law § 20.10). Defendant’s solicitation of the cocaine was necessarily incidental to that possession, and application of Penal Law § 20.10 limits the culpability of defendant to that resulting from his own conduct (see, People v Manini, 79 NY2d 561, 569-572; see also, People v Allen, 92 NY2d 378, 383-384; compare, People v Warren, 66 NY2d 831), i.e., conspiracy in the second degree (see, People v Gray, 284 AD2d 1012 [decided herewith]). The People further contend that defendant is guilty of possessing the cocaine under the theory of constructive possession. We disagree. Viewed in the light most favorable to the People (see, People v Contes, supra, at 621), the evidence establishes that the shipment was controlled exclusively by the New York City supplier and defendant was a customer without any control over the person in actual possession (see, People v Manini, supra, at 573). (Appeal from Judgment of Supreme Court, Monroe County, Mark, J. — Criminal Possession Controlled Substance, 1st Degree.) Present — Pigott, Jr., P. J., Wisner, Hurlbutt, Kehoe and Burns, JJ.