People v. Noble , 623 N.Y.S.2d 106 ( 1995 )

—Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered February 24, 1993, 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 Vi to 7 years, affirmed.

Having failed to object to the trial court’s instruction on the weight element, defendant’s argument that the trial evidence was legally insufficient because the People failed to establish that he had knowledge of the weight of the drugs he possessed is unpreserved (see, People v Ivey, 204 AD2d 16, 18, lv granted 84 NY2d 874). Concur—Rubin, Asch and Nardelli, JJ.

Ellerin, J. P., and Wallach, J., dissent in a memorandum by Wallach, J., as follows: For the reasons stated by this Court in People v Cooper (204 AD2d 24, lv granted 84 NY2d 874), I would reduce this conviction to criminal possession of a controlled substance in the seventh degree, and as so modified, affirm.