SULLIVAN, J.P.

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the second degree (Penal Law § 220.18), which required proof that "he knowingly and unlawfully possesse[d] * * * one or more preparations, compounds, mixtures or substances of an aggregate weight of two ounces or more containing a narcotic drug". Although he does not contest the finding that he possessed more than two ounces of a substance containing cocaine, defendant, relying on People v. Ryan ( 82 N.Y.2d 497), decided subsequent to his conviction and during the pendency of this appeal, argues that the trial evidence was legally insufficient because the People failed to establish that he had knowledge of the aggregate weight of the drugs he possessed. In Ryan, the Court of Appeals, interpreting the statutory "knowingly and unlawfully possesses" scienter element of drug possession crimes, held that it applies to the weight as well as to the nature of the controlled substance. Since defendant, as he acknowledges, never raised the issue at trial, it is unpreserved for appellate review and should be rejected.

Prior to Ryan (supra), in which the defendant made the particularized argument that there was insufficient evidence of his knowledge of the weight of the relevant drugs (82 N.Y.2d, supra, at 501), it was generally accepted by the trial and intermediate appellate courts of this State, as well as prosecutors and defense lawyers, that there was no scienter requirement with respect to the weight element of a drug possession charge. (See, e.g., 3 CJI[NY] PL 220.16 [8]-[13], at 1682.) In accordance with that view, the trial court in this case, in specifying the elements, charged the jury, inter alia, that the People had to prove, "[T]hird, that the defendant knowingly and unlawfully possessed such cocaine; and fourth, that such cocaine knowingly and unlawfully possessed by the defendant was of an aggregate weight of two or more * * * two ounces or more." There was no suggestion at any point in the charge that the scienter requirement of knowledge applied to the weight of the drugs.

Defendant never objected to the court's instruction on the weight element, either at the time of the charge-in-chief or at the time the court, responding to a jury note, repeated the elements. Absent an exception thereto, the error in a charge that improperly defines the elements of a crime is unpreserved as a "question of law". (People v. Dekle, 56 N.Y.2d 835, 837.) Having failed to register any objection to the charge, defendant should not now be heard to complain about any paucity of proof as to the scienter element with respect to weight. In that regard, the Court of Appeals has noted that there is no "due process violation when there is evidence from which a rational trier of fact could find the essential elements of the crime as those elements were charged to the jury without exception beyond a reasonable doubt. There is neither constitutional nor jurisprudential error in permitting guilt to be determined under a penal statute as construed by the common assumption of both attorneys and the court." (People v. Dekle, supra, at 837 [emphasis in original]; see also, People v. Maldonado, 192 A.D.2d 381, lv denied 81 N.Y.2d 1076.)

In an effort to avoid the preservation problem, defendant, citing People v. Kilpatrick ( 143 A.D.2d 1), in which this Court excepted claims of evidentiary insufficiency from the usual preservation requirement, fashions his arguments in terms of a challenge to the sufficiency of the evidence. In Kilpatrick, however, this Court emphasized that care must be taken "to distinguish a challenge addressed to the sufficiency of the evidence from one involving a claim of error in the trial court's charge or instructions to the jury." (Supra, at 2.) As this Court noted, the trial court in Kilpatrick had properly instructed the jury on the element of the crime as to which the evidence was found insufficient (supra, at 2). Thus, as both Dekle and Kilpatrick recognize, a true sufficiency challenge is presented only when the trial evidence is challenged as legally insufficient to establish the relevant crime as that crime was charged to the jury.

Thus, the issue now being raised with respect to the weight element turns not on the sufficiency of the evidence to allow the inference of scienter with respect thereto but rather on the plain fact that the court's charge never told the jury to consider the issue. That being so, defendant's failure to register any objection to the charge on that point or to request any jury instruction that would have directed the trial court's attention to his current complaint — that the People were required to, but did not, prove that he knew that the weight of the substance he possessed containing cocaine weighed two ounces or more — renders the claim unpreserved and forecloses this Court's consideration of it as a matter of law. (CPL 470.05; see, e.g., People v. James, 75 N.Y.2d 874.)

Nor should we reach the issue in the interest of justice since, had scienter been an issue at the trial, the People might well have been able to present their evidence in a way that would have satisfied that element of the crime. For instance, defendant's 1988 conviction for criminal possession of a controlled substance in the fourth degree might have been admitted to show that defendant was an experienced handler of drugs. (See generally, People v. Molineux, 168 N.Y. 264, 297; see also, People v Jackson, 39 N.Y.2d 64, 68.) Other evidence, not reflected in this record, might also have been available. Rather than being served, the interest of justice would be frustrated if this Court were to reach defendant's belated claim that the People did not prove that he knew that the substance containing cocaine which he knowingly possessed weighed two ounces or more.

We have examined defendant's other contentions and find them to be without merit.

Accordingly, the judgment of the Supreme Court, New York County (Mary McGowan Davis, J.), rendered September 27, 1991, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the second degree and sentencing him, as a predicate felony offender, to an indeterminate term of imprisonment of from six years to life, should be affirmed.