People v. Collier

216 A.D.2d 946, 629 N.Y.S.2d 706, 1995 N.Y. App. Div. LEXIS 7303

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1995
• Status: Published

Opinion

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for sentencing 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 that defendant had the requisite knowledge of the weight of the controlled substance he possessed (see, People v Ryan, 82 NY2d 497; People v Lewis, 213 AD2d 1065; People v Williams, 210 AD2d 914). 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). Therefore, the conviction of criminal possession of a controlled substance in the fifth degree is reduced to criminal possession of a controlled substance in the seventh degree, the sentence imposed thereon is vacated and the matter is remitted to Erie County Court for sentencing on that conviction (see, CPL 470.20 [4]). (Appeal from Judgment of Erie County Court, D’Amico, J. —Criminal Possession Controlled Substance, 5th Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.