I dissent and would modify the conviction by reducing it from criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree, substitute a definite sentence of one year, and otherwise affirm. The defendant’s sufficiency claim is preserved by his motion at the end of the People’s case (People v Kilpatrick, 143 AD2d 1; CPL 470.15 [4] [b]). The evidence was insufficient, as a matter of law, to support the finding that the defendant knew that he possessed more than 500 milligrams of cocaine (Penal Law § 220.06 [5]).
In People v Ryan (82 NY2d 497, 505) the Court of Appeals stated: "drug possession is not a strict liability crime[;] * * * an individual is not deserving of enhanced punishment unless he or she is aware that the amount possessed is greater”. Here there was no direct or circumstantial proof that the defendant knew he possessed more than 500 milligrams of cocaine (compare, People v Acosta, 80 NY2d 665, 668).
The jury rejected the People’s claim that the defendant was a seller of drugs when they acquitted him of criminal possession of a controlled substance with intent to sell. Thus, no *294inference can be drawn that this defendant had any special knowledge as a merchant in the drug trade, and it is unreasonable to infer that he must have known that he possessed over 500 milligrams of pure cocaine merely by holding a number of vials of an impure powder in his hand.
The majority holds that the requisite knowledge can simply be inferred from the fact that the defendant was holding 1,591 milligrams of cocaine in his hand. I disagree. The pure weight the defendant was charged with possessing, transposed to ounces, is .055685 ounce. The amount which exceeds the misdemeanor level is .038185 ounce. To conclude that the defendant, or anyone, could gauge a difference in weight of less than four hundredths of an ounce, defies all human experience. The majority misconstrues my discussion of comparative weights. It has nothing whatever to do with the potency of controlled substances. It has to do only with the human ability to gauge infinitesimal weights simply by touch, unaided by instruments of any kind.
The majority begins its opinion by reviewing the defendant’s criminal history. This is perhaps to suggest, as the opinion later does, that these arrests might be admissible to show his experience in gauging precise weights. What is omitted from the listing is the fact that six of the nine arrests dealt with marihuana alone. Marihuana possession is the subject of an aggregate weight standard (Penal Law § 221.10 et seq.) and not the pure weight standard which is in issue here (Penal Law § 220.06 [5]). The Court of Appeals in People v Ryan (supra) has made clear the difference in proofs permissible in pure weight and aggregate weight cases. Further, there is no indication in the record before us that the defendant ever previously possessed cocaine, the subject of the instant case, at any time, including his last arrest some four and one-half years prior to the arrest which gives rise to this appeal.
Rubin and Williams, JJ., concur with Ross, J.; Rosenberger, J. P., and Ellerin, J., dissent in a separate opinion by Rosenberger, J. P.
Judgment, Supreme Court, New York County, rendered August 27, 1992, affirmed.