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People v. Smith

217 A.D.2d 910 Court N.Y. App. Div. Decision date 1995-07-14 English

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p. 910
The People of the State of New York, Respondent, v William E. Smith, Appellant.
[629 NYS2d 922]

Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions (1) that he was denied a fair trial by the erroneous admission of hearsay evidence (see, CPL 470.05 [2]); (2) that his conviction of criminal posses-

p. 911
sion of a controlled substance in the fifth degree (Penal Law § 220.06) is not supported by legally sufficient evidence because the People failed to establish his knowledge of the weight of the cocaine as required by People v Ryan ( 82 NY2d 497 ) (see, People v Gray, 86 NY2d 10 ; People v Gaines, 216 AD2d 858 ); and (3) that the trial court erred in failing to give a circumstantial evidence charge employing the moral certainty standard (see, CPL 470.05 [2]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Defendant’s conviction of criminal possession of a controlled substance in the third degree is supported by legally sufficient evidence that defendant possessed the cocaine "with intent to sell it” (Penal Law § 220.16 [1]; see, People v Orta, 184 AD2d 1052 , 1054). The jury reasonably could have inferred intent to sell from defendant’s possession of 21 individually wrapped packages of cocaine (see, People v Nelson, 189 AD2d 828 , lv denied 81 NY2d 890 ; People v Blue, 173 AD2d 836 ). (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.— Criminal Possession Controlled Substance, 3rd Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.

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