dissents in a memorandum as follows: I am not as certain as the majority that People v Ryan (82 NY2d 497) must be retroactively applied. In Ryan the Court of Appeals found that there was a statutory mens rea requirement associated with the weight of a controlled substance. However, in an analogous situation, People v Antommarchi (80 NY2d 247) was also decided on statutory grounds (CPL 260.20) and expressly was held to have only prospective effect to cases in which jury selection occurred after the date of that decision (People v Mitchell, 80 NY2d 519, 529; see also, People v Sprowal, 84 NY2d 113).
Further, as the majority acknowledges, the court, in this case, did not charge the jury that the People had to prove the defendant had knowledge of the weight of the controlled substance and the defendant did not request such a charge or object to its omission. While the majority asserts that the defendant preserved the Ryan objection, citing People v Kilpatrick (143 AD2d 1), "[i]n Kilpatrick, however, this Court emphasized that care must be taken 'to distinguish a challenge addressed to the sufficiency of the evidence from one involving a claim of error in the trial court’s charge or instructions to the jury.’ (supra, at 2). Thus, as both Dekle [People v Dekle, 56 NY2d 835] and Kilpatrick recognize, a true sufficiency challenge is presented only when the trial evidence is challenged as legally insufficient to establish the relevant crime as that crime was charged to the jury” (People v Ivey, 204 AD2d 16, 18 [Sullivan, J.] [decided herewith]; emphasis added).
*29The cases cited by the majority for the proposition that we have adhered to the preservation analysis in Kilpatrick (supra) are not contrary to the rule set forth in Kilpatrick as interpreted in People v Ivey (supra), with which I agree. Thus, in People v Abdullah (164 AD2d 260), which I wrote for a unanimous Bench, the issue was not the mens rea of the defendant, but the failure of the People to prove the actual weight of the controlled substance. In Abdullah, this was an element of the crime of possession, expressly charged by the Court (supra, at 263-264). Therefore, while not explicitly stated, we found the evidence legally insufficient "as that crime was charged to the jury” (People v Ivey, supra, at 18). This is inapposite to the situation herein where the mens rea element was not charged. People v Blacknall (185 AD2d 108, lv denied 80 NY2d 1025) deals with the sufficiency of the evidence of "physical injury” as an element of robbery in the second degree and there is no indication in that decision that the court did not charge with respect to this element of the crime. People v Atkins (173 AD2d 424) simply contained a statement which was dicta that we were unpersuaded that Kilpatrick was wrongly decided. People v Rodriguez (164 AD2d 832) involved a bench trial, not a trial by jury. In addition, the indictment voted by the Grand Jury was constructively amended by the trial court, and thus we found reversal required by People v Grega (72 NY2d 489, 496). In People v Watson (163 AD2d 253, lv withdrawn 76 NY2d 992), we found that the evidence was legally insufficient to prove that defendant had no license or privilege to enter a school, and thus the People failed to meet their burden of proving every essential element of third degree burglary. There is no indication in Watson that the trial court did not charge as to this element.
I agree with our holding in Kilpatrick (supra). However, again, "a true sufficiency challenge is presented only when the trial evidence is challenged as legally insufficient to establish the relevant crime as that crime was charged to the jury” (People v Ivey, supra, at 18; emphasis added).
Accordingly, the claim herein is unpreserved and this Court is precluded from considering it as a matter of law (CPL 470.05 [2]).