People v. Smith

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 police 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.