People v. Smith

Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for our review his contentions (1) that he was denied a fair trial by the erroneous admission of hearsay evidence (see, CPL 470.05 [2]); (2) that his conviction of criminal posses-

sion of a controlled substance in the fifth degree (Penal Law § 220.06) is not supported by legally sufficient evidence because the People failed to establish his knowledge of the weight of the cocaine as required by People v Ryan (82 NY2d 497) (see, People v Gray, 86 NY2d 10; People v Gaines, 216 AD2d 858); and (3) that the trial court erred in failing to give a circumstantial evidence charge employing the moral certainty standard (see, CPL 470.05 [2]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]).

Defendant’s conviction of criminal possession of a controlled substance in the third degree is supported by legally sufficient evidence that defendant possessed the cocaine "with intent to sell it” (Penal Law § 220.16 [1]; see, People v Orta, 184 AD2d 1052, 1054). The jury reasonably could have inferred intent to sell from defendant’s possession of 21 individually wrapped packages of cocaine (see, People v Nelson, 189 AD2d 828, lv denied 81 NY2d 890; People v Blue, 173 AD2d 836). (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.— Criminal Possession Controlled Substance, 3rd Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.