People v. Best

210 A.D.2d 1000, 621 N.Y.S.2d 972, 1994 N.Y. App. Div. LEXIS 13567

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing in accordance with the following Memorandum: Defendant’s conviction of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]) is not supported by legally sufficient evidence establishing that defendant had the requisite knowledge of the weight of the controlled substance he possessed within the meaning of the statute (see, People v Ryan, 82 NY2d 497; People v Lawrence, 204 AD2d 969, Iv granted 84 NY2d 937).

The evidence is sufficient, however, to sustain a conviction of the lesser included offense of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element (see, People v Lawrence, supra). Thus, we modify the judgment by reducing defendant’s conviction of criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree and by vacating the sentence imposed thereon, and we remit the matter to Supreme Court for resentencing on that conviction (see, CPL 470.20 [4]). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Criminal Possession Controlled Substance, 5th Degree.) Present—Lawton, J. P., Fallon, Wesley, Doerr and Boehm, JJ.