People v. Butler

248 A.D.2d 274, 670 N.Y.S.2d 81, 1998 N.Y. App. Div. LEXIS 3200

Opinion

—Judgment, Supreme Court, New York County (Ronald Zweibel, J.), rendered March 13, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence that defendant committed the lesser included offense of criminal possession of a controlled substance in the seventh degree, but not the greater offense of fifth-degree possession. Defendant’s various attacks upon the chemists’ testimony failed to create such a reasonable view. Analysis of a random sampling established that defendant possessed 754 milligrams of cocaine. Even if the 10% margin for error described in the expert testimony were to be applied to the calculations, defendant still possessed far in excess of the 500 milligram threshold for fifth-degree possession (see, People v Thurman, 179 AD2d 382, Iv denied 79 NY2d 954). We have considered defendant’s remaining contentions and find them to be without merit.

Concur — Wallach, J. P., Williams, Mazzarelli and Saxe, JJ.