Majority
p. 946The People of the State of New York, Respondent, v Jason Collier, Appellant. [629 NYS2d 706]
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 crimi
p. 947
nal 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.
Cases cited
- People v. Ryan 82 NY2d 497 p. 946
- People v. Williams 210 AD2d 914 p. 946