Opinion
October 5, 1998
Appeal from the Supreme Court, Kings County (Gary, J.).
Ordered that the judgment is modified, on the facts, by reversing the conviction for criminal possession of a controlled substance in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
Upon the exercise of our factual review power, and in light of the jury's verdict acquitting the defendant of the sale of heroin, we conclude that the jury's further verdict convicting him of criminal possession of a controlled substance in the third degree ( see, Penal Law § 220.16) is against the weight of the evidence ( see, CPL 470.15; People v. Washington, 209 A.D.2d 560, affd 87 N.Y.2d 945; People v. Hernandez, 203 A.D.2d 479). Specifically, the jury's finding that the defendant intended to sell the one grain of cocaine he possessed at the time of his arrest was not warranted by the evidence presented ( see, People v. Washington, supra; People v. Hernandez, supra; People v. Garafolo, 44 A.D.2d 86, 88).
Bracken, J. P., Ritter, Thompson and Krausman, JJ., concur.