While I adhere to the views expressed in this Court’s opinion in People v Ivey (204 AD2d 16 [decided herewith]) as to the lack of preservation by virtue of a defendant’s acceptance of a charge excluding the scienter requirement from the weight element, I join in the modification. In its supplemental instructions, the court charged the jury that it had to find that the cocaine was "knowingly and unlawfully possessed by the defendant in a weight of five hundred milligrams or more” and that defendant "knowingly and unlawfully possessed an amount of cocaine in excess of 500 milligrams”. Thus, the court, on no less than two separate occasions, properly applied the scienter requirement to the weight in accordance with the dictates of the statute. (See, People v Ryan, 82 NY2d 497.) Under a charge correctly applying the scienter requirement to the weight of the drugs, the evidence was clearly insufficient to satisfy this element of the crime and a modification is in order.