Opinion
February 18, 1997.
Order, Supreme Court, New York County (Harold Beeler, J.), entered on or about March 27, 1995, which granted defendant's motion to reduce the indictment charging him with criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree, unanimously modified, on the law, to the extent of vacating such reduction and replacing it with a reduction to criminal possession of a controlled substance in the second degree, and otherwise affirmed.
Before: Milonas, J.P., Ellerin, Nardelli and Tom, JJ.
Viewing the evidence presented to the Grand Jury in a light most favorable to the People, we agree with the motion court that the evidence was insufficient to support a charge of criminal possession of a controlled substance in the first degree, since the mere fact that defendant was seen showing a bag containing 43/8 ounces to another person for an unspecified period of time, without more, failed to establish that he had knowledge that he possessed at least 4 ounces ( People v Delacruz, 222 AD2d 302). However, the count should have been reduced to the lesser included offense of criminal possession of a controlled substance in the second degree, since, for Grand Jury purposes, the totality of the evidence was sufficient to establish that defendant knowingly possessed at least 2 ounces ( supra).