| People v Johnson |
| 2009 NY Slip Op 07470 [66 AD3d 537] |
| October 20, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Michael Johnson, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (John B.F. Martin of counsel), forrespondent.
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 inthe third and seventh degrees, and sentencing him, as a second felony drug offender whose priorfelony conviction was a violent felony, to an aggregate term of eight years, unanimouslyaffirmed.
The court, which submitted seventh-degree possession as a lesser included offense ofthird-degree possession based on intent to sell, properly declined to submit seventh-degreepossession under another count charging third-degree possession based on the weight of thedrugs. There was no reasonable view of the evidence, viewed most favorably to defendant, tosupport such a charge. The scientific evidence established that the weight of the drugs indefendant's possession was well in excess of the statutory threshold of one-half ounce (seePeople v Lopez, 297 AD2d 561, 562 [2002], lv denied 99 NY2d 560 [2002];People v Butler, 248 AD2d 274 [1998], lv denied 91 NY2d 1005 [1998]). There wasno basis, other than sheer speculation, for the jury to find that the chemist inaccurately weighedthe drugs, or to otherwise reject the portion of his testimony concerning the weight of thesubstance, while at the same time accepting the portion of his testimony identifying thesubstance (see People v Negron, 91 NY2d 788, 792 [1998]).[*2]
We have considered defendant's remaining argumentsand find them to be without merit. Concur—Tom, J.P., Buckley, Catterson, Freedman andAbdus-Salaam, JJ.