PEOPLE v. MARTINEZ

The evidence presented to the Grand Jury that defendant was observed holding a bag of crack cocaine, later determined to weigh 2 1/8 ounces and 21 grains, was insufficient to establish that he was aware that he possessed at least two or more ounces, the threshold amount required for the second-degree possession count (Penal Law § 220.18; see, People v. Sanchez, 86 N.Y.2d 27, 34-35). However, it was sufficient to establish his awareness that the cocaine weighed 1/8 ounce, or more, the threshold for fourth-degree possession (Penal Law § 220.09; see, People v Sanchez, supra, at 34; People v. Frazier, 224 A.D.2d 358). Accordingly, we reduce the first count of the original indictment to fourth-degree possession, rather than seventh-degree possession. The prosecutor's charge to the Grand Jury, which tracked the statutory language for second-degree possession but did not specifically instruct on the knowledge-of-weight requirement, "was not so misleading as to impair the integrity of the Grand Jury" ( People v. Vigo, 222 A.D.2d 261, 262). The second count charging possession with intent to sell (Penal Law § 220.16) was properly dismissed on the ground that such an intent cannot be inferred from the amount of money ($110) and drugs possessed in this case, which were uncut, not packaged for sale and unaccompanied by any other saleslike conduct ( see, People v. Sanchez, supra, at 35; People v Delacruz, 222 A.D.2d 302).

Concur — Murphy, P.J., Wallach, Rubin, Williams and Mazzarelli, JJ.