Opinion
July 15, 1994
Appeal from the Niagara County Court, DiFlorio, J.
Present — Pine, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Niagara County Court for further proceedings in accordance with the following Memorandum: Evidence of the presence of drug paraphernalia in defendant's home was properly admitted to show dominion and control over the drugs (see, People v. Satiro, 72 N.Y.2d 821, 822). The proof, viewed in the light most favorable to the People, established defendant's joint and constructive possession of the cocaine (see, People v Campbell, 187 A.D.2d 945, lv denied 81 N.Y.2d 786; People v Fuller, 168 A.D.2d 972, 973, lv denied 78 N.Y.2d 922). Nevertheless, defendant's conviction of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06) is not supported by legally sufficient evidence that defendant had the requisite knowledge of the weight of the controlled substance (see, People v. Ryan, 82 N.Y.2d 497; People v Lawrence, 204 A.D.2d 969). That conviction must be reduced to criminal possession of a controlled substance in the seventh degree, the sentence imposed thereon vacated, and the matter remitted to Niagara County Court for sentencing on that conviction.
Although the "search for the truth" remark by the prosecutor in his summation was improper, his summation on balance did not deny defendant due process of law or otherwise deprive defendant of a fair trial (see, People v. Galloway, 54 N.Y.2d 396, 401; People v Ellis, 188 A.D.2d 1043, 1044, lv denied 81 N.Y.2d 970; People v Hazlett, 167 A.D.2d 867, 868, lv denied 77 N.Y.2d 878). The court's instruction concerning the indictment was not improper (see, People v. Smith, 113 A.D.2d 905, 909, lv denied 66 N.Y.2d 922; cf., People v. LaDolce, 196 A.D.2d 49, 54-55).
Defendant's remaining contentions are not preserved for review (see, CPL 470.05), and we decline to review them as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).