Judgment unanimously modified, on the law, and, as modified, affirmed and defendant remanded to Supreme Court, Erie County, for resentencing, in accordance with the following memorandum: In its charge on the elements of criminal possession of marihuana in the fifth degree (Penal Law, § 221.10), the court instructed the jury that in order to convict defendant they had to find that he possessed a substance which "did in fact contain some quantity of marijuana." This is...
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