PEOPLE v. ALVAREZ

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The PEOPLE of the State of New York, Respondent, v. Amantina ALVAREZ, Defendant-Appellant.

Decided: January 19, 2010

FRIEDMAN, J.P., McGUIRE, RENWICK, RICHTER, MANZANET-DANIELS, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Alexandra Keeling of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (Sara M. Zausmer of counsel), for respondent.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J. at trial; Brenda Soloff, J. at sentence), rendered June 4, 2007, convicting defendant of criminal possession of a controlled substance in the second and third degrees and conspiracy in the second degree, and sentencing her to an aggregate term of 3 years to life, unanimously modified, on the facts, to the extent of reducing the conviction on criminal possession of a controlled substance in the second degree to criminal possession of a controlled substance in the third degree, and remanding for sentencing on that conviction, and otherwise affirmed.

At the time of the trial in 1994, the crime of criminal possession of a controlled substance in the second degree for which defendant was convicted required proof that she both possessed at least two ounces of cocaine (former Penal Law § 220.18[1] ) and knew that she possessed at least two ounces of cocaine (People v. Ryan, 82 N.Y.2d 497 [1993] ). The evidence at trial was that defendant possessed a clear plastic bag containing 2 1/4 ounces and 16 grains of cocaine. Even assuming that the evidence was legally sufficient to establish that defendant knew that the cocaine weighed more than two ounces (but cf. People v. Pitterson, 234 A.D.2d 79 [1996], lv denied 89 N.Y.2d 1014 [1997] [evidence that defendant's travel bag contained a paper bag in which three ounces of cocaine were packaged in 506 ziplock bags legally insufficient to establish defendant's awareness that he possessed at least two ounces of cocaine] ), we find that the verdict was against the weight of the evidence. Nothing in the intercepted conversations established defendant had knowledge of the weight of the drugs; the narcotics were in a single plastic bag and the amount was too close to the statutory minimum to conclude that she would have been aware of the contraband's weight (see People v. Campbell, 230 A.D.2d 636 [1996]. Accordingly, we reduce the conviction to criminal possession of a controlled substance in the third degree, which required at the time of trial proof that defendant knowingly possessed at least half an ounce of cocaine (former Penal Law § 220.16[2] ), and remand for sentencing.

However, defendant's contention that the trial evidence was likewise against the weight of the evidence to support the criminal possession of a controlled substance in the third degree (intent to sell) is without merit. The evidence, including wiretapped conversations, showed that defendant was involved in packaging large amounts of drugs for sale, and that this activity took place in two apartments, one of which was the location of the arrest. Hence the inference that defendant intended to sell the drugs she possessed was warranted.