SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LEONARD GONZALEZ, DEFENDANT-APPELLANT.
Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered January 29, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the fourth degree.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed, and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
On appeal from a judgment convicting him, following a jury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 ), defendant contends that the evidence is legally insufficient to support the conviction and that the verdict is against the weight of the evidence. We reject those contentions (see generally People v Bleakley, 69 NY2d 490, 495). Defendant's lack of knowledge of the aggregate weight of the controlled substance is irrelevant (see People v Green, 32 AD3d 1181, lv denied 7 NY3d 902), and defendant's contention that the presence of stones improperly inflated the aggregate weight of the mixture containing the controlled substance is equally unavailing. The weight of the mixture containing the narcotic, rather than the weight of the actual narcotic content of the mixture, determines the degree of the crime (see People v La Porta, 56 AD2d 983). Also contrary to defendant's contention, the People presented evidence establishing that defendant exercised dominion and control over the areas within the house where the cocaine was found (see generally People v Manini, 79 NY2d 561, 572-574). Finally, the sentence is not unduly harsh or severe.
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