I disagree with the majority and would modify the judgment of the trial court.
In People v Ryan (82 NY2d 497), the Court of Appeals held that if a single mens rea is set forth in a criminal statute, it applies to all elements of the offense contained therein. Applying the foregoing to Penal Law § 220.18 (5) (criminal possession of a controlled substance in the second degree), the Court concluded that the weight of the controlled substance is not a strict liability element and, therefore, it is incumbent upon the People to prove that the defendant knowingly possessed the weight of the controlled substance set forth in the statute.
While Ryan (supra) was decided subsequent to the instant case, defendant’s conviction must be modified based on the fundamental principle that the People have the burden of proving in the first instance each element of the crime charged beyond a reasonable doubt (see, People v Contes, 60 NY2d 620). If the burden of proof is not met, the People’s case is legally insufficient and cannot support a conviction. Simply, the People in this case have failed to prove the element of mens rea as to the weight of the controlled substance, as expounded in Ryan, to support a conviction of criminal possession of a controlled substance in the fifth degree. It would, therefore, be manifestly unfair and a denial of due process to uphold defendant’s conviction, pursuant to Ryan, as the People have failed to prove the requisite elements of the crime charged.
The People argue that Ryan (supra) should be applied prospectively only; that the issue was not preserved and should not be reached in the interest of justice; and that *36defendant’s knowledge of the weight was proven circumstantially.
I find that the issue has been preserved for our review. The record reflects that defendant, at the close of the People’s case, moved for a trial order of dismissal pursuant to CPL 290.10 (1) on the ground that the People failed to offer proof legally sufficient to establish the offense charged, thus preserving the issue for review.
Although defendant, in this pre-Ryan case, did not specifically request a charge on the requirement of the knowledge of weight of the cocaine, in People v Kilpatrick (143 AD2d 1, 3), we held that: "Where, as here, the evidence adduced at trial is legally insufficient to establish the defendant’s guilt of the offense of which he was convicted, the Appellate Division, pursuant to CPL 470.15 (4) (b), may reverse or modify the judgment, on the law, whether or not the defendant expressly or impliedly requested or protested the trial court’s ruling on the issue in accordance with CPL 470.05. Consequently, the People’s claim that this issue has not been preserved for our review is without merit (People v James [111 AD2d 254, affd 67 NY2d 662]).”
We have, in the past, declined to reconsider our holding in Kilpatrick (supra; see, e.g., People v Blacknall, 185 AD2d 108, lv denied 80 NY2d 1025; People v Atkins, 173 AD2d 424; People v White, 167 AD2d 256, lv denied 77 NY2d 912; People v Rodriguez, 164 AD2d 832) and although I recognize that the Second Department has taken a contrary view (see, e.g., People v Okehoffurum, 201 AD2d 508; People v Downs, 195 AD2d 477, lv denied 82 NY2d 753; but see, People v James, supra), I would, in light of Kilpatrick and its progeny, coupled with the recent holding in Ryan (supra), conclude that the issue is preserved.
I would also find Ryan (supra) should have retrospective application since Ryan is not a newly pronounced legal principle but is purely an interpretation of prior existing law.
In People v Favor (82 NY2d 254, 263), the Court of Appeals held that: " '[a] judicial decision construing the words of a statute [for the first time] does not constitute the creation of a new legal principle’ (Gurnee v Aetna Life & Cas. Co. [55 NY2d 184], at 192). Further, retroactively should not be in question when a court’s ruling merely applies previously established principles in a new factual setting or settles a question in a manner that was clearly foreshadowed” (emphasis added).
*37The foregoing is pivotal as the Court in Ryan (supra) took pains to point out that knowledge of the weight requirement had been "suggested” in a number of its prior decisions (People v Ryan, supra, at 504, citing People v Scarborough, 49 NY2d 364, 374; People v Reisman, 29 NY2d 278, 287).
Turning to the facts of this case, defendant was convicted of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]), a class D felony. Testimony at trial revealed that the pure weight of the cocaine found to have been possessed by defendant was 887 milligrams, or more than the 500 milligrams, pure weight, necessary for conviction pursuant to Penal Law § 220.06 (5).
The People, relying on People v Harmon (181 AD2d 34, 37) and the memorandum cited therein (State Exec Dept re L 1988, ch 178, 1988 McKinney’s Session Laws of NY, at 1983-1984), argue that because crack is recognized as a concentrated form of cocaine with few impurities (the crack in the present action was 87.8% pure cocaine), the defendant should be charged with knowledge of its purity, and, therefore, its weight. The People also attempt to distinguish Ryan (supra) because in Ryan, the Court noted that the amount of psilocybin in mushrooms is almost impossible to determine, and, therefore, defendant could not have been aware of how much of the hallucinogen he possessed. In the instant case, because of its purity and the fact that defendant handled the drugs, the People urge that knowledge of its weight can be inferred.
The problem with the People’s argument is twofold. In the first instance, there is no evidence that defendant had anything to do with the crack’s manufacture and, therefore, the degree of purity. Nor is there any evidence that defendant was aware of, or had read, the Executive Department memorandum.
Secondly, and most important, the difference between conviction of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a misdemeanor, and criminal possession of a controlled substance in the fifth degree is, in this case, the difference between 500 milligrams (the statutory limit) and 887 milligrams (what defendant was convicted of possessing), or, in nonmetric measurements, approximately .01365 ounce. This, in my view, is incapable of determination by human handling.
With regard to the People’s remaining arguments, I agree with the reasoning and conclusions set forth by the majority *38in People v Cooper (204 AD2d 24 [decided herewith]) and would find them to be without merit.
As a result of the foregoing, I would reduce defendant’s conviction of criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree, remand the matter for resentencing, and otherwise affirm.