Opinion
April 28, 1995
Appeal from the Supreme Court, Erie County, Forma, J.
Present — Green, J.P., Pine, Callahan, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted following a jury trial of criminal possession of a controlled substance in the second and third degrees (Penal Law § 220.18; § 220.16 [1]). The argument that the evidence of defendant's knowledge of the weight of the controlled substance is insufficient is without merit, as is the People's contention that the issue is unpreserved (see, CPL 470.15 [b]; People v Lawrence, 204 A.D.2d 969, 970, lv granted 84 N.Y.2d 937). Because defendant was convicted under an aggregate weight statute, his knowledge of the weight of the substance "may be inferred from [his] handling of the material" (People v Ryan, 82 N.Y.2d 497, 505; see, People v Hill, 85 N.Y.2d 256; People v Porter, 207 A.D.2d 993, lv denied 84 N.Y.2d 1037), as well as from the presence of drug paraphernalia and other evidence that he was dealing in drugs (see, People v Hill, supra; People v Graham, 209 A.D.2d 822; People v Goss, 204 A.D.2d 984, lv denied 84 N.Y.2d 826; People v Okehoffurum, 201 A.D.2d 508, lv denied 83 N.Y.2d 970). In this case there was evidence of defendant's drug dealing activity; defendant had the key to the apartment, where 2.73 ounces of cocaine were found on a plate on a coffee table, a large amount of cash was found in a travel bag on the table near the cocaine, and numerous small Ziploc baggies were found resembling the baggie containing cocaine that defendant was earlier seen selling. That evidence permitted the jury to infer that defendant knowingly possessed the cocaine and was aware of its weight.
Defendant's contention that the chemist's testimony did not adequately establish the weight of the cocaine is without merit. "`[I]t was for the jury to decide whether the expert had adequately analyzed and weighed the contents and whether his opinion was entitled to be credited'" (People v Hill, supra, quoting People v Argro, 37 N.Y.2d 929, 930).
The further contention of defendant that Supreme Court erred in failing to instruct the jury that the People were required to establish his knowledge of the weight of the controlled substance is not preserved for review (see, CPL 470.05 [a]; People v Furtick, 213 A.D.2d 1012; People v Napoli, 212 A.D.2d 1022), and we decline to reach it as a matter of discretion in the interest of justice (see, CPL 470.15 [a]).
We conclude that defendant's sentence is not unduly harsh or severe and that defendant's remaining contentions are without merit.