PEOPLE v. McQUEEN

Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was convicted, following a jury trial, of criminal possession of a controlled substance in the second degree (Penal Law § 220.18) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The People concede that County Court's instructions to the jury on reasonable doubt unconstitutionally diminished the People's burden of proof. Therefore, defendant was deprived of a fair trial (see, People v. Brinson, 195 A.D.2d 966; People v. LaPlanche, 193 A.D.2d 1062, 1062-1063, lv dismissed 82 N.Y.2d 756; People v. Payne, 192 A.D.2d 1117; People v. Frank, 186 A.D.2d 977). Thus, the conviction must be reversed and a new trial granted.

There is no merit to the contention that defendant's conviction of criminal possession of a controlled substance in the second degree is not supported by legally sufficient evidence. Unlike the defendant in People v. Ryan ( 82 N.Y.2d 497), defendant was convicted under an aggregate weight statute (Penal Law § 220.18). Therefore, defendant's knowledge of the weight of the controlled substance "may be inferred from defendant's handling of the material" (People v. Ryan, supra, at 505; see, People v Williams, 209 A.D.2d 962 [decided herewith]; People v. Porter, 207 A.D.2d 993; People v. Goss, 204 A.D.2d 984).

We have reviewed defendant's remaining contention and conclude that it is without merit.