People v. Collier

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

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.