PEOPLE v. JOHNSON

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

The PEOPLE of the State of New York, Respondent, v. Michael JOHNSON, Defendant-Appellant.

Decided: October 20, 2009

TOM, J.P., BUCKLEY, CATTERSON, FREEDMAN, ABDUS-SALAAM, JJ. Marino & Veneziano, New York (Amelio P. Marino of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), for respondent.

Judgment, Supreme Court, New York County (Arlene Goldberg, J.), rendered November 13, 2006, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third and seventh degrees, and sentencing him, as a second felony drug offender whose prior felony conviction was a violent felony, to an aggregate term of 8 years, unanimously affirmed.

The court, which submitted seventh-degree possession as a lesser included offense of third-degree possession based on intent to sell, properly declined to submit seventh-degree possession under another count charging third-degree possession based on the weight of the drugs.   There was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge.   The scientific evidence established that the weight of the drugs in defendant's possession was well in excess of the statutory threshold of one-half ounce (see People v. Lopez, 297 A.D.2d 561, 562, 747 N.Y.S.2d 156 [2002], lv. denied 99 N.Y.2d 560, 754 N.Y.S.2d 213, 784 N.E.2d 86 [2002];  People v. Butler, 248 A.D.2d 274, 670 N.Y.S.2d 81 [1998], lv. denied 91 N.Y.2d 1005, 676 N.Y.S.2d 133, 698 N.E.2d 962 [1998] ).   There was no basis, other than sheer speculation, for the jury to find that the chemist inaccurately weighed the drugs, or to otherwise reject the portion of his testimony concerning the weight of the substance, while at the same time accepting the portion of his testimony identifying the substance (see People v. Negron, 91 N.Y.2d 788, 792, 676 N.Y.S.2d 520, 699 N.E.2d 32 [1998] ).

We have considered defendant's remaining arguments and find them to be without merit.