PEOPLE v. GONZALEZ

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Leonard GONZALEZ, Defendant-Appellant.

Decided: December 31, 2008

PRESENT:  HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ. Eoannou, Lana & D'Amico, Buffalo (Michael L. D'Amico of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

On appeal from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ), defendant contends that the evidence is legally insufficient to support the conviction and that the verdict is against the weight of the evidence.   We reject those contentions (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Defendant's lack of knowledge of the aggregate weight of the controlled substance is irrelevant (see People v. Green, 32 A.D.3d 1181, 820 N.Y.S.2d 823, lv. denied 7 N.Y.3d 902, 826 N.Y.S.2d 611, 860 N.E.2d 73), and defendant's contention that the presence of stones improperly inflated the aggregate weight of the mixture containing the controlled substance is equally unavailing.   The weight of the mixture containing the narcotic, rather than the weight of the actual narcotic content of the mixture, determines the degree of the crime (see People v. La Porta, 56 A.D.2d 983, 393 N.Y.S.2d 118).   Also contrary to defendant's contention, the People presented evidence establishing that defendant exercised dominion and control over the areas within the house where the cocaine was found (see generally People v. Manini, 79 N.Y.2d 561, 572-574, 584 N.Y.S.2d 282, 594 N.E.2d 563).   Finally, the sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed, and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: