Opinion
May 27, 1981
Appeal from the Erie Supreme Court.
Present — Cardamone, J.P., Doerr, Denman, Moule and Schnepp, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: In its charge on the elements of criminal possession of marihuana in the fifth degree (Penal Law, § 221.10), the court instructed the jury that in order to convict defendant they had to find that he possessed a substance which "did in fact contain some quantity of marijuana." This is the aggregate weight standard. Criminal possession of marihuana in the fifth degree requires possession of substances containing more than 25 grams of marihuana. Section 221.10 Penal of the Penal Law was amended in 1979 at which time the aggregate weight standard was added to replace the pure weight standard previously employed. The possession of marihuana charged to defendant in the indictment occurred November 15, 1978 and the jury should have been instructed using the pure weight standard (People v Houston, 72 A.D.2d 369). However, the proof of defendant's possession of marihuana was overwhelming, so that there is no need to remand the matter for a new trial. The conviction of criminal possession of marihuana in the fifth degree is modified by reducing that conviction to unlawful possession of marihuana, a violation, where proof of quantity is not required (Penal Law, § 221.05). Defendant is remanded to Supreme Court, Erie County for resentencing consistent with the modification of the judgment of conviction.