Summary
In People v. Gray (205 A.D.2d 353), a matter in which this writer was in the majority, the conviction for criminal possession of a controlled substance in the fourth degree was reduced to seventh degree possession based upon defendant's Ryan sufficiency claim.
Summary of this case from People v. DouglasOpinion
June 14, 1994
Appeal from the Supreme Court, New York County (Albert P. Williams, J.).
Defendant's assertions that the evidence does not support a conviction for criminal possession of a controlled substance in the fourth degree or that he possessed over one-eighth ounce of cocaine are, contrary to the People's contentions, preserved for this Court's review as a matter of law (People v. Kilpatrick, 143 A.D.2d 1). Defendant properly argues that the evidence does not support the crime for which he was convicted since there was no competent evidence to prove that defendant had knowledge of the weight of the drugs involved (People v. Ryan, 82 N.Y.2d 497). Since the evidence supports a conviction for criminal possession of a controlled substance in the seventh degree, modification to that lesser count is required.
Defendant's claim that the court's jury charge deprived him of a fair trial is unpreserved (CPL 470.05; People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914; People v. Encarnacion, 190 A.D.2d 607, lv denied 81 N.Y.2d 1072), and we decline to review it in the interest of justice.
Concur — Murphy, P.J., Wallach, Ross, Rubin and Williams, JJ.