
    The People of the State of New York, Respondent, v Brian Christian, Appellant.
    [618 NYS2d 711]
   —Judgment, Supreme Court, New York County (Juanita Bing Newton, J.), rendered January 13, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, modified, on the law, to the extent of reducing the conviction to criminal possession of a controlled substance in the seventh degree, and remanding the matter for resentencing in accordance therewith.

A police officer observed defendant packaging crack into glassine envelopes on top of a video game. The officer recovered 10 plastic envelopes containing crack cocaine and a tin foil packet with a large chunk of crack cocaine. Defendant was charged and convicted on proof that he possessed 500 milligrams or more of "pure weight” cocaine in violation of Penal Law § 220.06 (5).

While the police chemists’ testimony established that the crack contained a total of 1,759 milligrams of pure cocaine, or more than three times the statutory minimum of 500 milligrams, the evidence was insufficient as a matter of law to support the finding that defendant knew that he possessed 500 milligrams or more of cocaine (People v Ryan, 82 NY2d 497). The People failed to present any evidence from which a jury could infer that defendant knew the pure net weight of cocaine (People v Gordon, 204 AD2d 22). Concur—Carro, Rosenberger and Wallach, JJ.

Sullivan, J. P., and Rubin, J., dissent in a memorandum by Sullivan, J. P., as follows:

I would affirm defendant’s conviction of criminal possession of a controlled substance in the fifth degree since defendant failed to preserve as a point of law his claim that the trial evidence was legally insufficient to establish that he knew that the quantity of cocaine he possessed was at least 500 milligrams. (See, People v Ivey, 204 AD2d 16.)  