People v. Maye

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Niagara 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 (see, People v Ryan, 82 NY2d 497 ; see also, People v Maye, 206 AD2d 846 ). Defendant’s conviction must be reduced to criminal possession of a controlled substance in the seventh degree, the sentence imposed thereon vacated, and the matter remitted to Niagara County Court for sentencing on that conviction (see, People v Lawrence, 204 AD2d 969 , lv granted 84 NY2d 937 ; see also, People v Maye, supra). (Appeal from Judgment of Niagara County Court, DiFlorio, J.—Criminal Possession Controlled Substance, 5th Degree.) Present—Denman, P. J., Green, Wesley, Doerr and Balio, JJ.