Opinion
January 10, 1995
Appeal from the Supreme Court, New York County (Ronald A. Zweibel, J.).
A police officer recovered a brown paper bag from underneath a parked car. After observing that the bag contained vials of crack/cocaine, the officer replaced it. Shortly thereafter, defendant approached the car, reached down, and as he walked away, placed the bag into his pants pocket. Defendant was arrested and the bag of crack was seized. Defendant was charged and convicted on proof that he possessed 500 milligrams or more of "pure weight" cocaine in violation of Penal Law § 220.06 (5).
Defendant's challenge to the sufficiency of the People's proof regarding his knowledge of the aggregate weight of the controlled substance was not preserved by a timely objection to the jury charge with respect to the fifth degree possession count, and we decline to address it in the interest of justice (see, People v Ivey, 204 A.D.2d 16, lv granted 84 N.Y.2d 874).
We have considered defendant's remaining contentions and find them to be without merit.
Concur — Asch, Rubin and Williams, JJ.
I would modify the judgment, on the law, to the extent of reducing the conviction to criminal possession of a controlled substance in the seventh degree, and remanding the matter for resentencing for that misdemeanor level of guilt.
Called by the People at defendant's jury trial, the arresting officer testified that he recovered a brown paper bag from underneath a parked car. After noting that the bag contained vials of crack/cocaine, the officer repositioned it at the same spot. Shortly thereafter, defendant approached the car, reached down, and as he walked away, stuffed the bag into his pants pocket. Defendant was arrested almost immediately and the bag and its contents were recovered. Defendant was charged and convicted by the jury for possession of 500 milligrams or more of "pure weight" cocaine, a violation of Penal Law § 220.06 (5).
While the People's evidence proved that defendant possessed a total of 2,367 milligrams of cocaine (more than 4 1/2 times the statutory minimum), the evidence was insufficient as a matter of law to support a finding that defendant knew he possessed more contraband than the statutory minimum. The People failed to present any evidence from which a jury could infer that defendant knew the pure net weight of cocaine (People v. Sanchez, 205 A.D.2d 472, lv granted 84 N.Y.2d 872), a requirement laid down in People v. Ryan ( 82 N.Y.2d 497). Defendant's brief possession of the drug in a closed paper bag thrust hastily into his pocket does not satisfy the extensive "handling of the material" type of proof suggested in Ryan (supra, at 505) as a method of establishing the weight-related element of criminal possession of a controlled substance in the fifth degree.
I would also follow our recent decision in People v. Cooper ( 204 A.D.2d 24, lv granted 84 N.Y.2d 874) to the effect that the Ryan rule is retroactive, and that defendant adequately preserved his objection by his motion to dismiss at the close of the People's case (People v. Kilpatrick, 143 A.D.2d 1, 2).