People v. Mammarello

209 A.D.2d 999, 619 N.Y.S.2d 1020, 1994 N.Y. App. Div. LEXIS 12022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

—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 NY2d 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 AD2d 996 [decided herewith]; People v Ivey, 204 AD2d 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). (Appeal from Judgment of Supreme Court, Monroe County, Bergin, J.—Criminal Sale Controlled Substance, 1st Degree.) Present—Green, J. P., Pine, Lawton, Callahan and Doerr, JJ.