Memorandum.
Judgment, Supreme Court, New York County (Harold J. Rothwax, J.), rendered May 27, 1992, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, for which he was sentenced, as a second felony offender, to a term of 3 Vi to 7 years, affirmed. Sua sponte, leave to appeal to the Court of Appeals is hereby granted by Justice Rosenberger.
Acting upon a tip from a passerby who motioned in defendant’s direction and told them that "a young black kid” was across the street selling drugs, two uniformed police officers who were on foot patrol at Eighth Avenue and 41st Street immediately approached defendant. As they got to within 10 feet of defendant, he threw a bag to the ground. While one officer attempted to question defendant, the other officer retrieved the bag, which contained 22 vials of crack. Defendant then struck the officer questioning him in the head with his elbow and tried to run away and, after a scuffle, he was seized and placed under arrest. At trial, the police chemists testified that the vials of crack contained 887 milligrams of pure cocaine.
Among other issues, defendant argues in his supplemental brief that his conviction should be reduced from the class D felony of criminal possession of a controlled substance in the fifth degree to the class A misdemeanor of criminal possession of a controlled substance in the seventh degree in light of the recent decision in People v Ryan (82 NY2d 497) inasmuch as the People’s trial evidence was insufficient to prove that the vials of crack contained at least 500 milligrams of pure cocaine.
As was usual in these pre-Ryan cases, everyone proceeded at trial on the premise that there was no mens rea requirement with regard to the weight element of a drug possession charge. Although the defense made a nonspecific motion to dismiss for legal insufficiency at the close of the People’s case, there was no suggestion at that point that the mens rea requirement of knowledge applied to the weight of the drugs. The defense’s subsequent request that the court charge the lesser count of *34criminal possession of a controlled substance in the seventh degree was made not on the ground that the evidence was insufficient to prove that he knew that the weight of the cocaine he possessed equalled or exceeded 500 milligrams, but rather that "based on the testimony of the chemist the jury could draw a reasonable inference that the weight was somehow less than five hundred milligrams” because "we are not dealing with a substantial amount over that.” The court declined to submit the lesser included offense to the jury inasmuch as "3 hundred 87 [sic] more than five hundred. That is a lot” and it was satisfied that there was no reasonable view of the evidence under which the jury could find defendant not guilty of the felony but find him guilty of the misdemeanor.
We agree and for the reasons set forth by Justice Sullivan in his opinion in People v Ivey (204 AD2d 16 [decided herewith]), we find that defendant has failed to preserve the present issue for review, nor do we reach such issue in the interest of justice.
We have considered defendant’s other points and find them to be without merit. Concur—Kupferman, Ross and Nardelli, JJ. Rosenberger, J. P., and Tom, J., dissent in part, each in a separate memorandum as follows: