The People of the State of New York, Appellant, v. Elvis Martinez, Respondent

The evidence presented to the Grand Jury that defendant was observed holding a bag of crack cocaine, later determined to weigh 21/s ounces and 21 grains, was insufficient to establish that he was aware that he possessed at least two or more ounces, the threshold amount required for the second-degree possession count (Penal Law § 220.18 [1]; see, People v Sanchez, 86 NY2d 27, 34-35). However, it was sufficient to establish his awareness that the cocaine weighed 1/s ounce, or more, the threshold for fourth-degree possession (Penal Law § 220.09 [1]; see, People v Sanchez, supra, at 34; People v Frazier, 224 AD2d 358). Accordingly, we reduce the first count of the original indictment to fourth-degree possession, rather than seventh-degree possession. The prosecutor’s charge to the Grand Jury, which tracked the statutory language for second-degree possession but did not specifically instruct on the knowledge-of-weight requirement, "was not so misleading as to impair the integrity of the Grand Jury” (People v Vigo, 222 AD2d 261, 262). The second count charging possession with intent to sell (Penal Law § 220.16 [1]) was properly dismissed on the ground that such an intent cannot be inferred from the amount of money ($110) and drugs possessed in this case, which were uncut, not packaged for sale and unaccompanied by any other saleslike conduct (see, People v Sanchez, supra, at 35; People v Delacruz, 222 AD2d 302). Concur—Murphy, P. J., Wallach, Rubin, Williams and Mazzarelli, JJ.