Opinion
May 27, 1994
Appeal from the Oneida County Court, Buckley, J.
Present — Pine, J.P., Balio, Lawton, Davis and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Oneida County Court for further proceedings in accordance with the following Memorandum: The prosecutor's delay in turning over Rosario material (see, People v. Rosario, 9 N.Y.2d 286, rearg denied 9 N.Y.2d 908, cert denied 368 U.S. 866, rearg denied 14 N.Y.2d 876, 15 N.Y.2d 765) does not require reversal because defendant was not substantially prejudiced by that delay (see, People v. Martinez, 71 N.Y.2d 937; People v. Ranghelle, 69 N.Y.2d 56; People v. Garrett, 177 A.D.2d 1, lv denied 79 N.Y.2d 1000; People v. Harris, 130 A.D.2d 939, lv denied 70 N.Y.2d 647; cf., People v. Watt, 179 A.D.2d 697). 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). 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).
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): "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; 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., Penal Law § 220.18). "`[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])" (People v Favor, 82 N.Y.2d 254, 263). Thus, there is no question that the Ryan decision should be applied in this case because "[t]raditional common-law methodology contemplates that cases on direct appeal will generally be decided in accordance with the law as it exists at the time the appellate decision is made" (People v. Favor, supra, at 260).
There is sufficient evidence, however, to sustain a conviction of the lesser included offense of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), which does not have a weight element. Therefore, the conviction of criminal possession of a controlled substance in the fifth degree is reduced to criminal possession of a controlled substance in the seventh degree, the sentence imposed thereon is vacated, and the matter is remitted to Oneida County Court for sentencing on that conviction (see, CPL 470.20). We find no merit to the other issues raised by defendant.