People v. Lewis

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for sentencing in accordance with the following Memorandum: We agree with the contention of defendant that his conviction of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]) is not supported by legally sufficient evidence that defendant had the requisite knowledge of the weight of the controlled substance (see, People v Ryan, 82 NY2d 497; People v Lawrence, 204 AD2d 969, Iv granted 84 NY2d 937; People v Williams, 210 AD2d 914; People v Maye, 206 AD2d 846). The evidence is sufficient, however, to sustain a conviction of the lesser included offense of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which 1066 has no weight element (see, People v Lawrence, supra; see also, People v Williams, supra; People v Maye, supra). Thus, we modify the judgment by reducing defendant’s conviction of criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree and by vacating the sentence imposed thereon, and we remit the matter to Supreme Court for sentencing on that conviction (see, CPL 470.20 [4]). (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J.—Criminal Possession Controlled Substance, 5th Degree.) Present—Green, J. P., Pine, Fallon, Callahan and Davis, JJ.