Opinion
April 30, 1996
Appeal from the Supreme Court, New York County (Harold Beeler, J.).
Viewing the evidence presented to the Grand Jury in a light most favorable to the People, the court properly determined that it 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 holding a paper bag containing 4 1/4 ounces of cocaine and placing it behind his leg when police officers approached, without more, failed to establish that he had knowledge that he possessed at least four ounces (Penal Law § 220.21; People v. Delacruz, 222 A.D.2d 302). However, the charge 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 two ounces (Penal Law § 220.18; People v. Delacruz, supra).
Concur — Sullivan, J.P., Milonas, Ellerin, Nardelli and Williams, JJ.