Memorandum.
Judgment, Supreme Court, Bronx County (Dominic R. Massaro, J.), rendered December 12, 1991, convicting defendant, after jury trial, of criminal possession of a controlled substance in the fifth degree and sentencing him to 2 to 6 years’ imprisonment, modified, on the law, by reducing the conviction to criminal possession of a controlled substance in the seventh degree, and sentencing defendant to a term of 1 year’s imprisonment, and otherwise affirmed. Sua sponte, leave to appeal to the Court of Appeals is hereby granted by Justice Asch.
Defendant was arrested by undercover police officers who had observed him trafficking in crack cocaine on the street. At the time of arrest, defendant was in possession of 50 vials, which laboratory analysis later revealed contained 1,493 milligrams of 86% pure cocaine. The pure net weight of cocaine (i.e., 1,283 milligrams) was thus more than twice the 500 milligram threshold for criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). The jury acquitted defendant of two counts of criminal sale of a controlled substance in the third degree.
Conviction of this degree of criminal possession requires a showing of scienter with regard to the threshold weight of the substance as well as the unlawfulness of possession (People v Ryan, 82 NY2d 497). A statutory threshold in terms of pure weight requires a showing of knowledge of both the aggregate weight of the contraband and the purity of the substance. There is no evidence here, such as by negotiations on weight or potency, that would satisfy this requirement. Furthermore, Ryan must be retrospectively applied (People v Cooper, 204 AD2d 24 [decided herewith]). Even though no specific exception was made at trial with respect to this deficiency in the People’s proof, the issue has nonetheless been preserved for our review (People v Kilpatrick, 143 AD2d 1). Concur—Murphy, P. J., Carro and Wallach, JJ. Sullivan, J., concurs in a memorandum and Asch, J., dissents in a memorandum as follows: