Opinion
June 9, 1995
Appeal from the Erie County Court, D'Amico, J.
Present — Green, J.P., Pine, Fallon, Callahan and Davis, JJ.
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) 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 N.Y.2d 497; People v. Lewis, 213 A.D.2d 1065; People v. Williams, 210 A.D.2d 914). The evidence is sufficient, however, to sustain a conviction of the lesser included offense of criminal 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).