Is possession of a controlled substance with intent to sell not lawful possession?

Finally, this conclusion, that possession of a controlled substance with intent to sell is not lawful possession, is not precluded by the statute permitting prosecution for the far more serious crime of selling, or by another statute specifically prohibiting possession with intent to sell. The choice of the lesser or more punitive statute is properly one within the prosecutor's discretion, as long as both statutes fit the facts of the case. See People v. Eboli, 34 N.Y.2d 281, 357 N.Y.S.2d 435, 313 N.E.2d 746 (1974). There is no claim here that the prosecutorial discretion was not lawfully exercised and it is, in any event, doubtful that the defendant here would have standing to make that claim.