People v. Martinez

228 A.D.2d 185, 643 N.Y.2d 551, 643 N.Y.S.2d 551, 1996 N.Y. App. Div. LEXIS 6393

Opinion

The evidence presented to the Grand Jury that defendant was observed holding a bag of crack cocaine, later determined to weigh 21/s ounces and 21 grains, was insufficient to establish that he was aware that he possessed at least two or more ounces, the threshold amount required for the second-degree possession count (Penal Law § 220.18 [1]; see, People v Sanchez, 86 NY2d 27, 34-35). However, it was sufficient to establish his awareness that the cocaine weighed 1/s ounce, or more, the threshold for fourth-degree possession (Penal Law § 220.09 [1]; see, People v Sanchez, supra, at 34; People v Frazier, 224 AD2d 358). Accordingly, we reduce the first count of the original indictment to fourth-degree possession, rather than seventh-degree possession. The prosecutor’s charge to the Grand Jury, which tracked the statutory language for second-degree possession but did not specifically instruct on the knowledge-of-weight requirement, "was not so misleading as to impair the integrity of the Grand Jury” (People v Vigo, 222 AD2d 261, 262). The second count charging possession with intent to sell (Penal Law § 220.16 [1]) was properly dismissed on the ground that such an intent cannot be inferred from the amount of money ($110) and drugs possessed in this case, which were uncut, not packaged for sale and unaccompanied by any other saleslike conduct (see, People v Sanchez, supra, at 35; People v Delacruz, 222 AD2d 302). Concur—Murphy, P. J., Wallach, Rubin, Williams and Mazzarelli, JJ.