PEOPLE v. APONTE

Reset A A Font size: Print

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

The PEOPLE of the State of New York, Respondent, v. Jose APONTE, Defendant-Appellant.

Decided: October 23, 2001

NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN and LERNER, JJ. Kristin A. Kirk, for Respondent. Robert Budner, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Harold Beeler, J.), rendered August 20, 1997, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fourth and seventh degrees, and sentencing him, as a second felony offender, to a term of 3 to 6 years and to an unconditional discharge, respectively, unanimously modified, on the law, to the extent of vacating the conviction for criminal possession of a controlled substance in the seventh degree and dismissing that count, and otherwise affirmed.

The evidence was legally sufficient to establish defendant's guilt of criminal possession of a controlled substance in the fourth degree.   The People's expert testified that the total weight of the contents of a tin foil containing cocaine as well as extraneous matter such as dirt was one-quarter of an ounce plus 38.4 grains, which was more than twice the statutory threshold of one-eighth of an ounce.   She concluded, based on her training and experience, that the extraneous material constituted a “very small amount” of the total weight and did not weigh more than one-eighth of an ounce.   Under these circumstances, “ ‘it was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether [her] opinion was entitled to be credited’ ” (People v. Hill, 85 N.Y.2d 256, 261, 624 N.Y.S.2d 79, 648 N.E.2d 455, quoting People v. Argro, 37 N.Y.2d 929, 930, 379 N.Y.S.2d 840, 342 N.E.2d 601).

As conceded by the People, defendant's conviction for criminal possession of a controlled substance in the seventh degree, a lesser included offense of the fourth-degree charge, should be vacated.