People v. Evans

Feb 27, 2007
Reporters:
,

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the People established at the suppression hearing that the police had probable cause to arrest him (see People v Alvarez, 100 NY2d 549 [2003]).

Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant’s guilt of criminal possession of a controlled substance in the fourth degree beyond a reasonable doubt since, among other things, the weight of the crack cocaine recovered was more than one eighth of an ounce (see Penal Law § 220.09 [1]). Moreover, the Supreme Court properly denied the defendant’s request for a jury instruction as to criminal possession of a controlled substance in the fifth degree (see Penal Law § 220.06 [5]) as a lesser-included offense of criminal possession of a controlled substance in the fourth degree because there was no reasonable view of the evidence to support a finding that the weight of the crack cocaine recovered was less than one eighth of an ounce (see People v Van Norstrand, 85 NY2d 131, 135 [1995]; People v Walker, 300 AD2d 417 [2002]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

As the defendant’s crime was committed on September 13, 2003 he was not entitled to be sentenced under the Drug Law Reform Act (L 2004, ch 738, § 41 [d-1]; see People v Utsey, 7 NY3d 398 [2006]; People v Savage, 29 AD3d 1022, 1024 [2006]; People v Goode, 25 AD3d 723 [2006]). Schmidt, J.P., Krausman, Covello and Balkin, JJ., concur.