While I concur in the affirmance of defendant’s conviction, I do so on the merits. Contrary to the position of the majority, I find that defendant’s challenge to the sufficiency of the evidence regarding his knowledge of the quantity of drugs he possessed (People v Ryan, 82 NY2d 497) presents a question of law for review by this Court (CPL *20470.15 [4] [b]), notwithstanding that defendant’s motion for a trial order of dismissal did not specifically address the issue of knowledge of weight (People v Kilpatrick, 143 AD2d 1) and that the absence of an objection by defense counsel to the court’s failure to expressly particularize this issue in the charge to the jury does not distinguish this case from Kilpatrick and its progeny (see also, People v Cooper, 204 AD2d 24 [decided herewith], and cases therein cited).
The majority bases its conclusion that the instant case is distinguishable from Kilpatrick (supra) on the decision of the Court of Appeals in People v Dekle (56 NY2d 835, 837; see also, People v Gomez, 67 NY2d 843). In Dekle, the Court held that defense counsel’s failure to object to a jury charge which appellate counsel contended had provided an overly broad definition of the word "immediately”, as used in the statutory requirement for robbery that force be used "immediately after the taking” (Penal Law § 160.00 [1]), foreclosed an argument on the law that the evidence was insufficient to establish that the force used during the theft was not within a more narrow definition.
However, in the instant case it is not the charge that is in issue but rather the proof necessary to establish the element of "knowingly and unlawfully” possessing a controlled substance in the second degree. (Penal Law § 220.18.) While there may have been a general misapprehension in the past as to the proof necessary to establish that element, the Court of Appeals in People v Ryan has made clear that to sufficiently establish the statutory element of mens rea it is necessary to show not only defendant’s knowing possession of the controlled substance and knowledge of the nature of the possessed substance, but also knowledge of the weight of the material possessed (82 NY2d 497, 502-504, supra).
Since the defendant here is raising the issue of the insufficiency of the evidence to establish his guilt of criminal possession of a controlled substance in the second degree, this Court may address the issue, even in the absence of objection at the trial level, and may, where appropriate, reverse or modify the judgment on the law (People v Kilpatrick, supra, at 2-3).
Turning to the merits, upon a review of the record, I find that the verdict was neither based on insufficient evidence nor was it against the weight of the evidence. The prosecution met its burden of proving that defendant knew he possessed an aggregate weight of two ounces of cocaine, through evidence *21that defendant had handled the substance, which weighed almost four ounces (People v Ryan, 82 NY2d, supra, at 505), thus permitting the jury to draw the rational inference that defendant knew the quantity of drugs he possessed (see, People v Reisman, 29 NY2d 278, 285-288, cert denied 405 US 1041). Sua sponte, leave to appeal to the Court of Appeals is hereby granted by Justice Rosenberger.
Asch and Nardelli, JJ., concur with Sullivan, J. P.; Rosenberger and Ellerin, JJ., concur in a separate opinion by Ellerin, J.
Judgment, Supreme Court, New York County, rendered September 27, 1991, affirmed. Sua sponte leave to appeal to the Court of Appeals is granted by Justice Rosenberger.