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People v. Lewis

213 A.D.2d 1065 Court N.Y. App. Div. Decision date 1995-03-17 English

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p. 1065
The People of the State of New York, Respondent, v Travis Lewis, Appellant.
[625 NYS2d 982]

—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

p. 1066
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.

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