Opinion
April 28, 1995
Appeal from the Niagara County Court, DiFlorio, J.
Present — Denman, P.J., Green, Wesley, Doerr and Balio, JJ.
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) 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 N.Y.2d 497; see also, People v Maye, 206 A.D.2d 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 A.D.2d 969, lv granted 84 N.Y.2d 937; see also, People v Maye, supra).