Opinion
November 16, 1994
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Green, J.P., Pine, Lawton, Callahan and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that Supreme Court's instructions to the jury on counts three, four, five, seven and eight of the indictment were erroneous because they did not inform the jury that the People must prove that defendant had knowledge of the weight of the controlled substance (see, People v. Ryan, 82 N.Y.2d 497). Defendant concedes that he did not request such a charge or object to the charge with respect to the weight element. Thus, any error in the charge has not been preserved for review, and we decline to review that issue as a matter of discretion in the interest of justice (see, People v. Young, 209 A.D.2d 996 [decided herewith]; People v Ivey, 204 A.D.2d 16). Were we to reach the merits, we would conclude that any error is harmless because the record establishes that defendant knew the weight of the drugs he possessed and sold (see, People v. Ryan, supra, at 505).