Opinion
March 17, 1995
Appeal from the Supreme Court, Monroe County, Wisner, 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 Supreme Court for sentencing in accordance with the following Memorandum: We agree with the contention of defendant that his 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; People v. Lawrence, 204 A.D.2d 969, lv granted 84 N.Y.2d 937; People v Williams, 210 A.D.2d 914; People v. Maye, 206 A.D.2d 846). 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), which has no weight element (see, People v. Lawrence, supra; see also, People v. Williams, supra; People v. Maye, supra). Thus, we modify the judgment by reducing defendant's conviction of criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree and by vacating the sentence imposed thereon, and we remit the matter to Supreme Court for sentencing on that conviction (see, CPL 470.20).