
    [652 NE2d 919, 629 NYS2d 173]
    The People of the State of New York, Appellant, v Mike Gray, Respondent. The People of the State of New York, Appellant, v Patricia Cooper, Respondent. The People of the State of New York, Appellant, v Marshal Gordon, Respondent. The People of the State of New York, Respondent, v Lenton Ivey, Appellant. The People of the State of New York, Respondent, v Michael Barnes, Appellant. The People of the State of New York, Respondent, v Francisco Tejada, Also Known as Rubin Rodriguez, Appellant.
    Argued March 28, 1995;
    decided May 11, 1995
    
      POINTS OF COUNSEL
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Polly Greenberg of counsel), for appellant in the first and second above-entitled actions.
    I. Defendant’s guilt of fourth degree drug possession, as charged to the jury without objection, was proven beyond a reasonable doubt. Defendant’s legal insufficiency claim was not preserved for review by a specific objection, motion to dismiss, or request to charge, and the Court below, therefore, lacked power to reach that complaint as a question of law. (People v Ryan, 82 NY2d 497; People v Dekle, 56 NY2d 835; People v Cipolla, 6 NY2d 922; People v Gomez, 67 NY2d 843; People v Velasquez, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Bynum, 70 NY2d 858; People v Chaitin, 61 NY2d 683; People v Darragh, 141 App Div 408, 203 NY 527; People v Turley, 153 App Div 671; People v Blake, 121 App Div 613, 193 NY 616.) II. The Court below should not have evaluated legal sufficiency in light of People v Ryan (82 NY2d 497) because the trial was conducted before that decision changed the law; but, even under that new standard, the proof was legally sufficient to support defendant’s conviction. (People v Blacknall, 63 NY2d 912; People v Favor, 82 NY2d 254; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; People v Kaplan, 76 NY2d 140; People v Reisman, 29 NY2d 278, 405 US 1041; People v Sprowal, 84 NY2d 113.)
    
      Jonathan P. Willmott, New York City, and Philip L. Weinstein for respondent in the first above-entitled action.
    I. The Court below correctly reviewed, "on the law,” the sufficiency of the evidence. (People v Velasquez, 76 NY2d 905.) II. Where the evidence showed only that defendant held a bag containing 79 vials filled with crack cocaine weighing, in the aggregate, 3/100 of an ounce more than one eighth of an ounce, the prosecution did not sufficiently prove that defendant knew that the drugs weighed at least one eighth of an ounce, as was required by Penal Law § 220.09 (1). (People v Ryan, 82 NY2d 497; People v Leyva, 38 NY2d 160; Leary v United States, 395 US 6; Tot v United States, 319 US 463; People v Scarborough, 49 NY2d 364.)
    
      
      Susan H. Salomon, New York City, and Philip L. Weinstein for respondent in the second above-entitled action.
    I. The Court below was required to review respondent’s legal insufficiency claim. (Osborne v Ohio, 495 US 103; United States v Carr, 5 F3d 986; United States v Kaplan, 586 F2d 980; United States v Curtis, 568 F2d 643; United States v Ward, 914 F2d 1340; Cohoon v Rees, 820 F2d 784; People v Velasquez, 76 NY2d 905.) II. People v Ryan (82 NY2d 497 [1993]) applies to respondent’s case. (People v McLaurin, 157 Misc 2d 783.)
    
      Robert T. Johnson, District Attorney of Bronx County, Bronx (Nancy D. Killian and Peter D. Coddington of counsel), for appellant in the third above-entitled action.
    The Court below erred as a matter of law when it modified the judgment, on the law, based on a claim of evidentiary insufficiency that was not specifically raised in the trial court; the intermediate appellate court also erred in applying this Court’s decision in People v Ryan (82 NY2d 497) retroactively; in any event, appellant’s guilt of criminal possession of a controlled substance in the fifth degree was established beyond a reasonable doubt by legally sufficient evidence. (People v Vientos, 79 NY2d 771; People v Velasquez, 151 AD2d 159, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Grega, 72 NY2d 489; People v Colavito, 70 NY2d 996; People v Bynum, 70 NY2d 858; People v Kennedy, 68 NY2d 569; People v Gomez, 67 NY2d 843; People v Chaitin, 61 NY2d 683.)
    
      Adrienne Hale, New York City, and Philip L. Weinstein for respondent in the third above-entitled action.
    I. The Court below properly addressed the merits of defendant-respondent’s insufficiency claim "on the law.” (People v Velasquez, 76 NY2d 905.) II. The Court below correctly modified respondent’s conviction (1) where the evidence was insufficient to prove that respondent was guilty of criminal possession of a controlled substance in the fifth degree, which requires knowledge of pure weight, where respondent possessed a number of vials containing the substance, and (2) where the prosecution failed to establish the pure weight of the substance. (People v Ryan, 184 AD2d 24, 82 NY2d 497; People v Favor, 82 NY2d 254; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; People v Scarborough, 49 NY2d 364; People v Reisman, 29 NY2d 278; People v Pepper, 53 NY2d 213; People v Morales, 37 NY2d 262; Desist v United States, 394 US 244; People v Mitchell, 80 NY2d 519.)
    
      Debevoise & Plimpton, New York City (Elizabeth Buckley of 
      counsel), and Philip L. Weinstein for appellant in the fourth above-entitled action.
    I. Appellant’s guilt of felony-level drug possession was not proven where even the experienced arresting police officer believed that the cocaine at issue weighed less than the statutory threshold for the crime charged. (People v Ryan, 82 NY2d 497.) II. The complete omission of the knowledge-of-weight element of the crime from the Judge’s instructions to the jury requires this Court to order a new trial. (People v Wallens, 297 NY 57; People v Patterson, 39 NY2d 288; People v Lewis, 64 NY2d 1031; People v Walker, 198 NY 329; People v Steele, 26 NY2d 526; People v Flynn, 79 NY2d 879; People v Williams, 62 NY2d 765.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Ellen Sue Handman of counsel), for respondent in the fourth above-entitled action.
    I. Since defendant’s complaints about legal insufficiency and the jury charge were never brought to the Trial Judge’s attention, they do not present a question of law for review by this Court. (People v Ryan, 82 NY2d 497; People v Dekle, 56 NY2d 835; People v Gomez, 67 NY2d 843.) II. The People presented legally sufficient proof of defendant’s guilt even under the standard articulated in People v Ryan, which should not be applied retroactively to resuscitate unpreserved claims in any event. (Jackson v Virginia, 443 US 307; People v Acosta, 80 NY2d 665; People v Tejeda, 73 NY2d 958; People v Carter, 63 NY2d 530; People v Malizia, 62 NY2d 755, 469 US 932; People v Contes, 60 NY2d 620; People v Lewis, 64 NY2d 1111; People v Kennedy, Al NY2d 196; People v Ben-zinger, 36 NY2d 29; People v Steinberg, 79 NY2d 673.)
    
      Svetlana M. Kornfeind, New York City, and Philip L. Weinstein for appellant in the fifth above-entitled action.
    I. The Court below erred in refusing to review appellant’s insufficiency claim and in failing to review the weight of the evidence. (People v Ryan, 82 NY2d 497; People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v Walker, 81 NY2d 661; People v Williams, 66 NY2d 629; People ex rel. Arcara v Cloud Books, 65 NY2d 324, 478 US 697; People v Thompson, 60 NY2d 513; People v Anderson, 66 NY2d 529; People v Barber, 289 NY 378.) II. The insufficiency and charge errors in appellant’s claim under People v Ryan (82 NY2d 497 [1993]) violate the mode of proceedings and, therefore, present questions of law for this Court’s review; to the extent that People v Bynum (70 NY2d 858 [1987]) bars such review, it should be overruled; accordingly, the People failed to prove beyond a reasonable doubt that appellant knew that he possessed at least 500 milligrams of pure cocaine, and the court erred in failing to submit the knowledge-of-weight element to the jury. (People v Briggins, 50 NY2d 302; People v Dekle, 56 NY2d 835; People v Wrieden, 299 NY 425; People v McCarthy, 250 NY 358; People v Ledwon, 153 NY 10; People v Bennett, 49 NY 137; People v Drislane, 8 NY2d 67; People v Shattuck, 194 NY 424; Jackson v Virginia, 443 US 307; People v Robinson, 36 NY2d 224.)
    
      Robert M. Morgenthau, District Attorney of New York County, New York City (Joseph J. Dawson, Mark Dwyer and Sheryl Feldman of counsel), for respondent in the fifth above-entitled action.
    I. Defendant’s guilt of fifth degree drug possession, as charged to the jury without exception, was proven beyond a reasonable doubt. Since his complaints about legal insufficiency and the jury charge were never brought to the Judge’s attention and involve a fact that was not expressly disputed at trial, they do not present a question of law for review by this Court or the Court below. Defendant’s claims to the contrary would require this Court to overturn well-settled rules of law that have served this State well for more than 125 years. (People v Dekle, 56 NY2d 835; People v Cipolla, 6 NY2d 922; People v Gomez, 67 NY2d 843; People v Thompson, 41 NY 1; Wilke v People, 53 NY 525; Johnson v People, 55 NY 512; Wood v People, 53 NY 511; People v Grossman, 168 NY 47; People v Bresler, 218 NY 567; People v Velasquez, 76 NY2d 905.) II. The People presented legally sufficient proof of defendant’s guilt even under the standard articulated in People v Ryan (82 NY2d 497), which should not be applied retroactively to resuscitate unpreserved claims in any event. (People v Blacknall, 63 NY2d 912; People v Favor, 82 NY2d 254; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 459 US 837; People v Kaplan, 76 NY2d 140; People v Reisman, 29 NY2d 278, 405 US 1041; People v Sprowal, 84 NY2d 113; People v Antommarchi, 80 NY2d 247.)
    
      Arthur H. Hopkirk, New York City, and Philip L. Weinstein for appellant in the sixth above-entitled action.
    I. The Court below erred (a) when it relied upon counsel’s failure to object to the Judge’s charge concerning the elements of the crime as a basis for refusing to entertain appellant’s argument that the evidence of his knowledge of the weight of the cocaine he momentarily possessed was insufficient; and (b) when it failed to review the weight of the evidence. (People v Bleakley, 69 NY2d 490.) II. This Court should review the sufficiency of the evidence based upon defense counsel’s general motion for a trial order of dismissal or, in the alternative, as a "mode of proceedings” error and, pursuant to that review, should find that appellant’s guilt of felony-level drug possession was not proven; in the alternative, the complete omission of an element of the crime from the Judge’s instructions to the jury was a fundamental error which requires this Court to order a new trial. (People v Nixon, 248 NY 182; Jackson v Virginia, 443 US 307; People v Ryan, 82 NY2d 497; People v Abdullah, 164 AD2d 260; People v Mendoza, 81 NY2d 963; People v Wallens, 297 NY 57; People v Patterson, 39 NY2d 288; People v Walker, 198 NY 329; People v Steele, 26 NY2d 526; People v Lewis, 64 NY2d 1031.)
    
      Robert T. Johnson, District Attorney of Bronx County, Bronx (Howard B. Sterinbach and Peter D. Coddington of counsel), for respondent in the sixth above-entitled action.
    I. The new rule of State law announced in People v Ryan (82 NY2d 497 [1993]) should be given prospective only application to trials conducted after December 16, 1993. (People v Blacknall, 63 NY2d 912; People v Antommarchi, 80 NY2d 247; People v Mitchell, 80 NY2d 519; Griffith v Kentucky, 479 US 314; People v Pepper, 53 NY2d 213, 454 US 967; People v Favor, 82 NY2d 254; Gurnee v Aetna Life & Cas. Co., 55 NY2d 184; People v Kaplan, 76 NY2d 140; People v Scarborough, 49 NY2d 364; People v Reisman, 29 NY2d 278, 405 US 1041.) II. The Court below correctly found appellant’s claim that the evidence was insufficient to prove his guilt of criminal possession of a controlled substance in the fourth degree unpreserved given his failure to move to dismiss on that specific ground and his failure to object to the charge of that crime as given. (People v Vientos, 79 NY2d 771; People v Velasquez, 151 AD2d 159, 76 NY2d 905; People v Logan, 74 NY2d 859; People v Grega, 72 NY2d 489; People v Colavito, 70 NY2d 996; People v Bynum, 70 NY2d 858; People v Kennedy, 68 NY2d 569; People v Gomez, 67 NY2d 843; People v Chaitin, 61 NY2d 683; People v Thomas, 36 NY2d 514.) III. There is no basis for this Court to remit this case back to the Court below to evaluate the weight of the evidence since, to the extent appellant raised a weight of the evidence claim there, that Court considered it; moreover, appellant’s claim that weight of the evidence must be evaluated by the statutory elements of the crime and not as that crime was charged to the jury is baseless. (People v Bleakley, 69 NY2d 490; People v Chipp, 147 AD2d 989, 75 NY2d 327; People v Bamberg, 51 NY2d 868; People v Alfinito, 16 NY2d 181; People v Smith, 63 NY2d 41, 469 US 1227; People v Davis, 43 NY2d 17, 435 US 998; People v Crum, 272 NY 348; People v Dekle, 56 NY2d 835.)
    
      Brenner & Scott, Melville (Jonathan C. Scott of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in all the above-entitled actions.
    No individual should stand convicted absent proof of guilt of every element of the offense. (People v Bleakley, 69 NY2d 490; Jackson v Virginia, 443 US 307; People v McLucas, 15 NY2d 167; People v Patterson, 39 NY2d 288; Smith v United States, 360 US 1; People v Foy, 32 NY2d 473; People v Spadafora, 131 AD2d 40; Ulster County Ct. v Allen, 442 US 140; People v Bynum, 70 NY2d 858; People v James, 111 AD2d 254.)
    
      Christine Duisin, Riverhead, for New York State District Attorneys’ Association, amicus curiae in the second, third, fourth, fifth and sixth above-entitled actions.
    I. Defendants’ Ryan claims, raised for the first time on appeal, are not preserved for appellate review as questions of law. (People v Ryan, 82 NY2d 497; People v Martin, 50 NY2d 1029; People v Robinson, 36 NY2d 224; People v Kilpatrick, 143 AD2d 1; People v Dekle, 56 NY2d 835; People v Lawrence, 64 NY2d 200; People v Velasquez, 76 NY2d 905; People v Bonaparte, 78 NY2d 26; People v Mehmedi, 69 NY2d 759; People v Creech, 60 NY2d 895.) II. Ryan should not be applied retroactively.
   OPINION OF THE COURT

Smith, J.

We hold that where a defendant seeks to argue on appeal, in accordance with People v Ryan (82 NY2d 497), that the People have failed to establish the defendant’s knowledge of the weight of drugs, preservation of that contention is required by an appropriate objection.

In each of these cases the defendant argues that no preservation by specifically raising the issue of proof of the defendant’s knowledge of weight is necessary. Some contend that, at most, a general motion to dismiss is all that is necessary in order to claim that the evidence of knowledge of weight is insufficient for a conviction. They rely on both statutory provisions (CPL 470.05, 470.15 [4] [a], [b]) and on the Due Process Clauses of the Federal and State Constitutions. The People counter that preservation is necessary, advancing both historical and practical reasons.

Turning first to defendants’ statutory claims, in order to preserve a claim of error in the admission of evidence or a charge to the jury, a defendant must make his or her position known to the court. Notwithstanding contentions to the contrary, we hold that preservation is required in these cases. The preservation mandate is not new. We noted in People v Cona (49 NY2d 26, 33, n 2) that even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be "specifically directed” at the alleged error which, here, is the failure of the People to show that the defendants had knowledge of the weight of the contraband. Similarly, in People v Dekle (56 NY2d 835, 837), we rejected the defendant’s due process challenge, holding that no due process violation occurred where a defendant was convicted upon proof sufficient to satisfy the court’s charge where the defendant failed to preserve his attack upon the charge. Recently, in People v Hill (85 NY2d 256, 259, supra), we stressed that "where the issue is fully preserved for our review, the knowledge requirement is applicable to tbe [specified criminal possession and criminal sale charges]” (emphasis supplied).

In People v Kilpatrick (143 AD2d 1, 2-3), the Appellate Division interpreted the difference between paragraphs (a) and (b) of CPL 470.15 (4) and held that where a defendant argues that evidence to support his or her conviction was legally insufficient, the traditional strictures of preservation do not apply. That Court reached this conclusion by focusing upon the omission, in paragraph (b), of the statement included in paragraph (a), that the error be "duly protested” by the defendant. Those paragraphs read:

"4. The kinds of determinations of reversal or modification deemed to be upon the law include, but are not limited to, the following:
"(a) That a ruling or instruction of the court duly protested by the defendant, as prescribed in subdivision two of section 470.05, at a trial resulting in a judgment, deprived the defendant of a fair trial;
"(b) That evidence adduced at a trial resulting in a judgment was not legally sufficient to establish the defendant’s guilt of an offense of which he was convicted” (emphasis supplied).

Defendants’ contention that CPL 470.15 (4) (a) and (b) eliminate the necessity of preservation is misplaced. It is true that the specific language of preservation is present in CPL 470.15 (4) (a) and absent from CPL 470.15 (4) (b). Despite the Appellate Division’s and defendants’ interpretations, we are of the view that this portion of Kilpatrick, construing CPL 470.15 (4) as described, should not be followed given its direct conflict with our holdings in Cona and Dekle, which govern here (see also, People v Bynum, 70 NY2d 858, 859 [general motion to dismiss at close of evidence insufficient to preserve claim regarding establishment of particular element of crime]; People v Stahl, 53 NY2d 1048, 1050 [requiring more than blanket trial order of dismissal to preserve specific claim involving critical conversation]).

The preservation rule is necessary for several reasons. Under article VI, § 3 of the New York State Constitution, the Court of Appeals, with limited exceptions, is empowered to consider only "questions of law” (People v Beige, 41 NY2d 60). The chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court’s attention. A general motion fails at this task (People v Narayan, 54 NY2d 106). As a practical matter, a general motion to dismiss is often no more helpful to the Trial Judge than would be a motion predicated on an erroneous ground. A sufficiently specific motion might provide the opportunity for cure before a verdict is reached and a cure is no longer possible (see, e.g., CPL 260.30 [7]).

Second, a timely objection alerts all parties to alleged deficiencies in the evidence and advances the truth-seeking purpose of the trial. Third, the timely objection advances the goal of swift and final determinations of the guilt or nonguilt of a defendant.

Defendants’ claim that the convictions here, since they are based on insufficient evidence, represent a violation of the proper "mode of proceedings,” is also unavailing. This language, derived from our decision in People v Patterson (39 NY2d 288, 295, affd 432 US 197), provides an exception to traditional preservation rules in constricted circumstances:

"There is one very narrow exception to the requirement of a timely objection. A defendant in a criminal case cannot waive, or even consent to, error that would effect the organization of the court or the mode of proceedings prescribed by law. (Cancemi v People, 18 NY 128, 138; People ex rel. Battista v Christian, 249 NY 314, 319.) In Cancemi, it was held that a defendant could not consent to being tried by a jury of less than 12 members. In People ex rel. Battista v Christian (supra), the court ruled that an information charging a defendant with an 'infamous’ crime was a nullity, despite defendant’s consent, where the State Constitution provided that infamous crimes could be prosecuted only by Grand Jury indictment. Thus, the rule has come down to us that where the court had no jurisdiction, or where the right to trial by jury was disregarded, or where there was a fundamental, nonwaivable defect in the mode of procedure, then an appellate court must reverse, even though the question was not formally raised below” (emphasis supplied).

The Patterson exception is, by definition of the Court, narrow in application. Defendants here attempt to apply it broadly, in a fashion not contemplated by this Court. The Patterson Court’s description of the exception clarifies that the rule goes to the general and over-all procedure of the trial, forbidding alteration of mandated procedural, structural, and process-oriented standards. The examples set forth by Patterson— changing of the burden of proof, consent to less than a 12-member jury in a criminal case, deviation from State constitutionally mandated requirements for an indictment — show that the claimed errors here should not fall within that exception. Some of the defendants contend that the failure to charge the jury that the People must prove that knowledge of the weight of the contraband possessed lessened the burden of proof and thus constituted reversible error under Patterson. However, in People v Thomas (50 NY2d 467, 472), we stated that a jury charge that is merely capable of being interpreted in such a way as to shift the burden of proof is not a Patterson error. Because Ryan itself states that it merely interpreted the language of the Penal Law on possessory offenses, the jury, too, could have interpreted the statutory language to mean that defendants must be shown to have had knowledge of the weight, even in the absence of an explicit charge. Moreover, an assertion that an element is missing from the proof required goes to substance and not to the mode of proceedings.

We also note that concerns that defendants’ rights are diminished by the holding here are misplaced. It should be emphasized that even where defendants have failed to adequately preserve claims for appellate review, they may request that the Appellate Divisions apply their "interest of justice” jurisdiction under CPL 470.15 (3). Nothing we hold here intrudes upon that jurisdiction.

We turn now to the specific cases before us.

People v Gray

Defendant was convicted of criminal possession of a controlled substance in the fourth degree. The Appellate Division, although not detailing the facts, concluded that the evidence did not support the conclusion that he had knowledge of the weight of the controlled substance (204 AD2d 35). It relied on People v Kilpatrick (143 AD2d 1, 3, supra) in determining that no preservation was necessary.

Leave to appeal was granted by a Judge of this Court.

We reverse and remit to the Appellate Division.

People v Gordon

Defendant was convicted of criminal possession of a controlled substance in the fifth degree after a jury trial. The Appellate Division modified the judgment, on the law, by reducing the conviction to criminal possession of a controlled substance in the seventh degree (204 AD2d 22). Sua sponte, leave to appeal to this Court was granted by one of the two dissenting Justices.

The evidence established that police officers saw defendant on a street trafficking in crack cocaine. He was arrested and found in possession of 50 vials containing what laboratory analysis established as 1,493 milligrams of 86% pure cocaine. Penal Law § 220.06 (5) makes it a crime to "knowingly and unlawfully” possess 500 or more milligrams of cocaine.

In reducing the verdict, the Appellate Division concluded that despite the absence of a specific objection to the lack of evidence of knowledge of weight, the issue was preserved as determined in People v Kilpatrick (143 AD2d 1, supra). The Appellate Division concluded that there was no evidence of knowledge of weight and that People v Ryan had to be retrospectively applied.

Justice Sullivan concurred in the order. While he stated that preservation of the issue of knowledge of weight was necessary, he concluded that the issue of scienter had been given to the jury in two supplemental instructions that the cocaine was " 'knowingly and unlawfully possessed by the defendant in a weight of five hundred milligrams or more’ ” and that the defendant " 'knowingly and unlawfully possessed an amount of cocaine in excess of 500 milligrams.’ ” (204 AD2d 22, 23.) He further concluded that the evidence was insufficient to support a jury verdict that defendant had knowledge of the weight of the substance.

Justice Asch dissented. He agreed that the scienter requirement was properly charged to the jury. He concluded, however, that defendant’s knowledge of the weight could be found in the number of vials and in the weight of almost three times the threshold required.

Because there was no preservation, we reverse and remit to the Appellate Division.

People v Cooper

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division modified the judgment by reducing the conviction to criminal possession of a controlled substance in the seventh degree (204 AD2d 24).

The evidence was that when a police officer observed the defendant knotting a plastic bag, she volunteered that the white powder was cocaine which she had bought for $40. The expert testimony was that there were 28 grains consisting of 1,814 milligrams which was 62.3% pure cocaine.

The Appellate Division concluded that defendant’s generalized motion to dismiss at the end of the People’s case and defendant’s request for a jury charge on the lesser included offense of criminal possession of a controlled substance in the seventh degree were insufficient to preserve the issue of the defendant’s knowledge of the weight of the substance. It concluded, however, that no preservation was necessary and relied on People v Kilpatrick (143 AD2d 1, 3, supra). It concluded further that to convict the defendant when one of the statutory elements of the crime was absent would be a denial of due process.

Justice Asch dissented. He interpreted Kilpatrick to mean that the Appellate Division could review an issue in the absence of preservation where the claim was that the evidence was insufficient in light of the charge to the jury. He, thus, would have affirmed the conviction. The dissenting Justice, sua sponte, granted leave to appeal to this Court.

We reverse and remit to the Appellate Division.

People v Ivey

Defendant was convicted, following a jury trial, of criminal possession of a controlled substance in the second degree. The evidence was that he had possessed a substance of an aggregate weight of more than two ounces of cocaine. The Appellate Division affirmed (204 AD2d 16). Justice Sullivan, writing for the majority, noted that prior to People v Ryan, trial and intermediate appellate courts, as well as prosecutors and defense attorneys, had relied on the fact that no scienter requirement existed with respect to the weight element of a drug possession charge. Citing People v Dekle (56 NY2d 835, 837, supra), the Court noted that where there was no objection to the charge for failure to include the issue of scienter, the issue was not preserved. The majority also interpreted Kilpatrick to permit review of the sufficiency of the evidence only in light of the charge to the jury.

Two Justices concurred in the result in an opinion written by Justice Ellerin. While they concluded that Kilpatrick made it unnecessary to preserve the scienter issue, they found knowledge of the weight in the defendant’s handling of a substance which weighed almost four ounces. Leave to appeal was granted by the concurring Justice Rosenberger.

Because of the lack of preservation, we affirm.

People v Barnes

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree. The Appellate Division affirmed, with two Justices dissenting (204 AD2d 33). Leave to appeal to this Court was granted, sua sponte, by Justice Rosenberger, one of the dissenting Justices.

The facts indicate that the police were given a tip by a passerby that "a young black kid” was on the street, near 41st Street and Eighth Avenue in Manhattan, selling drugs. When the police approached the youth, he threw a bag to the ground which turned out to contain 22 vials with 887 milligrams of pure crack cocaine. Defendant was arrested as he tried to run away.

The Appellate Division relied on People v Ivey (supra) and concluded that the Ryan issue had not been preserved. In dissent Justice Rosenberger relied on Kilpatrick to conclude that the issue of knowledge of weight had been preserved. He concluded further that the People had failed to prove that the defendant had knowledge of the weight of the drugs. Noting that "[t]he difference between misdemeanor weight and the amount of cocaine possessed by the defendant was .01365 ounce” (204 AD2d, at 35), Justice Rosenberger determined that the amount was too small to determine weight from mere handling. In a separate dissent, Justice Tom relied on Kilpatrick in concluding that the issue was preserved. He also relied on People v Cooper (supra) and determined that People v Ryan was retroactive.

We affirm.

People v Tejada

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fourth degree. The Appellate Division affirmed (204 AD2d 30). Leave to appeal was granted, sua sponte, by Justice Tom, one of the dissenting Justices.

The facts, as related in the dissent, indicate that a gypsy cab was stopped near University Avenue and Hall of Fame Terrace in the County of Bronx, New York City, after it went through a red light. Prior to the stop and after it had gone through the light, the cab picked up two passengers. When the officers approached the cab, one of the two passengers sitting in the back attempted to slide a zippered pouch to the other. The other passenger put the pouch on the floor and attempted to kick it towards the front seat. A police officer retrieved the pouch and found foil packets which later were proved to contain one eighth of an ounce and 33.4 grains of a substance containing cocaine.

The majority relied on People v Ivey (supra) in affirming the conviction. In a dissent which Justice Wallach joined, Justice Tom relied on his partial dissent in People v Barnes.

We affirm.

Accordingly, in People v Gray, People v Cooper, and People v Gordon, the order of the Appellate Division in each case should be reversed and the case remitted to the Appellate Division, First Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b). In People v Ivey, People v Barnes and People v Tejada, the order of the Appellate Division in each case should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur.

In People v Gray, Cooper and Gordon: Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

In People v Ivey, Barnes and Tejada: Order affirmed. 
      
      . In People v Hill (85 NY2d 256), we recently held that the knowledge requirement of our decision in People v Ryan should be applied retroactively, where the issue was preserved, in cases pending on direct appeal as of December 16, 1993.
     
      
      . CPL 470.05 reads, in part: "2. For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an ’exception’ but is sufficient if the party made his position with respect to the ruling or instruction known to the court. * * * In addition, a party who without success has either expressly or impliedly sought or requested a particular ruling or instruction, is deemed to have thereby protested the court’s ultimate disposition of the matter or failure to rule or instruct accordingly sufficiently to raise a question of law with respect to such disposition or failure regardless of whether any actual protest thereto was registered.”
     