People v. Smith, 642 N.Y.S.2d 223

People v. Smith

642 N.Y.S.2d 223

N.Y. App. Div.

1996

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Order, Supreme Court, New York County (Harold Beeler, J.), entered on or about September 14, 1994, which granted defendant’s motion to reduce the single-count 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 instead reduce the charge to criminal possession of a controlled substance in the second degree, and otherwise affirmed.

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 A114 ounces of cocaine and placing it behind his leg when *319police officers approached, without more, failed to establish that he had knowledge that he possessed at least four ounces (Penal Law § 220.21 [1]; People v Delacruz, 222 AD2d 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 [1]; People v Delacruz, supra). Concur—Sullivan, J. P., Milonas, Ellerin, Nardelli and Williams, JJ.