
    The People of the State of New York, Appellant, v Julio Perez, Respondent.
    [653 NYS2d 343]
   —Order, Supreme Court, New York County (Harold Beeler, J.), entered on or about March 27, 1995, which granted defendant’s motion to reduce the indictment charging him with criminal possession of a controlled substance in the first degree to criminal possession of a controlled substance in the seventh degree, unanimously modified, on the law, to the extent of vacating such reduction and replacing it with a reduction to criminal possession of a controlled substance in the second degree, and otherwise affirmed.

Viewing the evidence presented to the Grand Jury in a light most favorable to the People, we agree with the motion court that the evidence was insufficient to support a charge of criminal possession of a controlled substance in the first degree, since the mere fact that defendant was seen showing a bag containing 43/s ounces to another person for an unspecified period of time, without more, failed to establish that he had knowledge that he possessed at least 4 ounces (People v Delacruz, 222 AD2d 302). However, the count should have been reduced to the lesser included offense of criminal possession of a controlled substance in the second degree, since, for Grand Jury purposes, the totality of the evidence was sufficient to establish that defendant knowingly possessed at least 2 ounces (supra). Concur—Milonas, J. P., Ellerin, Nardelli and Tom, JJ.  