Opinion
March 17, 1995
Appeal from the Supreme Court, Monroe County, Bergin, J.
Present — Green, J.P., Pine, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of criminal possession of a controlled substance in the first and third degrees and conspiracy in the second degree, defendant contends that Supreme Court erred in failing to charge the jury, with respect to criminal possession of a controlled substance in the first degree, that the People had to prove defendant's knowledge of the weight of the controlled substance (see, Penal Law § 220.21; People v Ryan, 82 N.Y.2d 497). That issue is unpreserved, and we decline to address it as a matter of discretion in the interest of justice (see, People v. Napoli, 212 A.D.2d 1022; People v. Young, 209 A.D.2d 996; People v. Mammarello, 209 A.D.2d 999; People v. Echols, 209 A.D.2d 1000).
Defendant also contends that the court erred in permitting a prosecution witness to testify concerning defendant's uncharged prior drug activity. Even assuming, arguendo, that the court erred in permitting that testimony (see, People v Pena-Martinez, 206 A.D.2d 858), we conclude that any error is harmless in view of the overwhelming proof of guilt (see, People v. Crimmins, 36 N.Y.2d 230, 242; People v. Thomas, 207 A.D.2d 1029).
We have reviewed defendant's remaining contention and conclude that it is lacking in merit.