People v. Lawrence, 1

• Decision Date: 27 May 1994
• Docket Number: No. 1,1
• Citation: 204 A.D.2d 969,614 N.Y.S.2d 84
• Parties: PEOPLE of the State of New York, Respondent, v. Robert A. LAWRENCE, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 84

614 N.Y.S.2d 84

204 A.D.2d 969

PEOPLE of the State of New York, Respondent, v. Robert A. LAWRENCE, Appellant. Appeal No. 1.

Supreme Court, Appellate Division Fourth Department.

May 27, 1994.

Frank J. Nebush, Jr. by Esther Lee, Utica, for appellant.

Michael A. Arcuri by William Weber, Utica, for respondent.

Before PINE, J.P., and BALIO, LAWTON, DAVIS and BOEHM, JJ.

MEMORANDUM:

The prosecutor's delay in turning over Rosario material (see, People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, rearg. denied 9 N.Y.2d 908, 216 N.Y.S.2d 1025, 176 N.E.2d 111, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64, rearg. denied 14 N.Y.2d 876, 252 N.Y.S.2d 1027, 200 N.E.2d 784, 15 N.Y.2d 765, 257 N.Y.S.2d 1027, 205 N.E.2d 538) does not require reversal because defendant was not substantially prejudiced by that delay (see, People v. Martinez, 71 N.Y.2d 937, 528 N.Y.S.2d 813, 524 N.E.2d 134; People v. Ranghelle, 69 N.Y.2d 56, 511 N.Y.S.2d 580, 503 N.E.2d 1011; People v. Garrett, 177 A.D.2d 1, 580 N.Y.S.2d 42, lv. denied 79 N.Y.2d 1000, 584 N.Y.S.2d 455, 594 N.E.2d 949; People v. Harris, 130 A.D.2d 939, 516 N.Y.S.2d 554, lv. denied 70 N.Y.2d 647, 518 N.Y.S.2d 1040, 512 N.E.2d 566; cf., People v. Watt, 179 A.D.2d 697, 579 N.Y.S.2d 429). The court did not abuse its discretion in its Sandoval ruling.

Defendant's conviction of criminal possession of a controlled substance in the third degree is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject the contention of defendant that the sentence imposed on his conviction of criminal possession of a controlled substance in the third degree is harsh and excessive and should be reduced in the interest of justice. There has been no demonstration that County Court abused its discretion or that extraordinary circumstances exist warranting a reduction of the sentence (see, People v. Farrar, 52 N.Y.2d 302, 437 N.Y.S.2d 961, 419 N.E.2d 864).

Defendant contends that his conviction of criminal possession of a controlled substance in the fifth degree under Penal Law § 220.06(5) is not supported by legally sufficient evidence to establish that defendant had the requisite knowledge of the weight of the controlled substance possessed. The People respond that defendant failed to preserve the issue for our review. As the Court observed in People v. Kilpatrick, 143 A.D.2d 1, 3, 531 N.Y.S.2d 262:

"Where, as here, the evidence adduced at trial is legally insufficient to establish the defendant's guilt of the offense of which he was convicted, the Appellate Division, pursuant to CPL 470.15(4)(b), may reverse or modify the judgment, on the law, whether or not the defendant expressly or impliedly requested or protested the trial court's ruling on the issue in accordance with CPL 470.05."

We conclude that defendant's conviction of criminal possession of a controlled substance in the fifth degree under Penal Law § 220.06(5) is not supported by legally sufficient evidence to establish that defendant had the requisite knowledge of the weight of the controlled substance possessed within the meaning of the statute (see, People v. Ryan, 82 N.Y.2d 497, 605 N.Y.S.2d 235, 626 N.E.2d 51; see also, Donnino, Practice Commentaries, McKinney's Cons. Laws of NY, Book 39, Penal Law art. 220, at 9). We reject the People's contention that the holding in Ryan should not be applied inasmuch as Ryan was decided subsequent to the conviction of defendant in this case. Ryan is the first case in which the Court of Appeals has construed a Penal Law section analogous to section 220.06(5) (i.e., section 220.18[5]. " '[A] judicial decision construing the words of a statute [for the first time] does not constitute the creation of a new legal principle' (Gurnee v. Aetna Life & Cas. Co., [55 N.Y.2d 184, 192, 448 N.Y.S.2d 145, ...