Opinion
September 30, 1994
Appeal from the Niagara County Court, Hannigan, J.
Present — Denman, P.J., Pine, Lawton, Wesley and Davis, JJ.
Judgment unanimously affirmed. Memorandum: The contention of defendant that the trial court erred in accepting his waiver of the right to a jury trial lacks merit. Contrary to defendant's contention, the record establishes that, after the trial court conducted an extensive inquiry, defendant waived that right because he believed that the People did not have a strong case against him and that the court would perceive the weakness of the People's evidence. The record belies the assertion of defendant that he waived his right to a jury trial because he believed that no African-Americans were on the panel of prospective jurors.
There is no merit to the contention of defendant that his conviction of criminal possession of a controlled substance in the fourth degree is not supported by legally sufficient evidence. Unlike the cases of People v. Ryan ( 82 N.Y.2d 497) and People v. Lawrence ( 204 A.D.2d 969), defendant was convicted under an aggregate weight statute (Penal Law § 220.09). Therefore, defendant's knowledge of the weight of the substance "may be inferred from defendant's handling of the material, because the weight of the entire mixture, including cutting agents, is counted" (People v. Ryan, supra, at 505; see, People v. Goss, 204 A.D.2d 984).
Finally, the sentence is not unduly harsh or severe. Defendant's contention that the trial court abused its discretion by imposing a sentence that was "unnecessarily retributive" is lacking in merit.