PEOPLE v. McCURDY (2006)

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hall, J.), rendered May 17, 2004, convicting him of criminal possession of a controlled substance in the second degree and criminal possession of marijuana in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

 Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish that the defendant possessed an aggregate weight of more than 16 ounces of marijuana (see Penal Law § 221.25;  People v. Nelson, 144 A.D.2d 714, 717, 535 N.Y.S.2d 132).   Non-prohibited substances mixed with a proscribed substance can be included in determining the aggregate weight of the proscribed substance for the purpose of defining the degree of the crime (cf. People v. Mendoza, 184 A.D.2d 1055, 1056, 585 N.Y.S.2d 327, affd. 81 N.Y.2d 963, 598 N.Y.S.2d 764, 615 N.E.2d 221;  People v. Konyack, 99 A.D.2d 588, 589, 471 N.Y.S.2d 699;  People v. La Porta, 56 A.D.2d 983, 983-984, 393 N.Y.S.2d 118).   There is thus no merit to the defendant's contention that the People were required to exclude the mature stalks of marijuana plants when adducing evidence of the aggregate weight of marijuana in the defendant's possession (see Sponsor's Mem., Bill Jacket, L. 1979, ch. 265;  Penal Law § 220.00[6];  Public Health Law § 3302[21] ).

 The trial court providently granted the People's challenge for cause of a prospective juror, even though the challenge was made after the defendant had already completed his challenges for cause (see CPL 270.15[2], [4];  People v. Gaines, 258 A.D.2d 921, 687 N.Y.S.2d 920).   In any event, there was no prejudice to the defendant (see People v. Soto, 267 A.D.2d 15, 15-16, 699 N.Y.S.2d 53;  cf. People v. Powell, 13 A.D.3d 975, 976-977, 787 N.Y.S.2d 480).   The trial court properly instructed the jury, in connection with the charge of criminal possession of a controlled substance in the second degree, that it could find that the defendant acted in concert with an unindicted accomplice (see People v. Rivera, 84 N.Y.2d 766, 769-771, 622 N.Y.S.2d 671, 646 N.E.2d 1098;  People v. Gaston, 13 A.D.3d 96, 97, 786 N.Y.S.2d 445;   People v. Monahan, 114 A.D.2d 380, 380-381, 493 N.Y.S.2d 898).

The defendant's remaining contentions are without merit.