People v. Lewis

213 A.D.2d 1065, 625 N.Y.S.2d 982, 1995 N.Y. App. Div. LEXIS 3905

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for sentencing in accordance with the following Memorandum: We agree with the contention of defendant that his 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 (see, People v Ryan, 82 NY2d 497; People v Lawrence, 204 AD2d 969, Iv granted 84 NY2d 937; People v Williams, 210 AD2d 914; People v Maye, 206 AD2d 846). 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 has no weight element (see, People v Lawrence, supra; see also, People v Williams, supra; People v Maye, 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 sentencing on that conviction (see, CPL 470.20 [4]). (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J.—Criminal Possession Controlled Substance, 5th Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.