People v. Vega

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gary, J.), rendered January 9, 1997, convicting him of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, and unlawful possession of marihuana, upon a jury verdict, and imposing sentence.

*314Ordered that the judgment is modified, on the facts, by reversing the conviction for criminal possession of a controlled substance in the third degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

Upon the exercise of our factual review power, and in light of the jury’s verdict acquitting the defendant of the salé of heroin, we conclude that the jury’s further verdict convicting him of criminal possession of a controlled substance in the third degree (see, Penal Law § 220.16 [1]) is against the weight of the evidence (see, CPL 470.15 [5]; People v Washington, 209 AD2d 560, affd 87 NY2d 945; People v Hernandez, 203 AD2d 479). Specifically, the jury’s finding that the defendant intended to sell the one grain of cocaine he possessed at the time of his arrest was not warranted by the evidence presented (see, People v Washington, supra; People v Hernandez, supra; People v Garafolo, 44 AD2d 86, 88). Bracken, J. P., Ritter, Thompson and Krausman, JJ., concur.