Decided September 19, 1995
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Richard Carruthers, J.
Weil, Gotshal Manges, New York City (Julie Rosensweig of counsel), E. Joshua Rosenkranz and Mark Gimpel for appellant.
Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for respondent.
The order of the Appellate Division should be affirmed.
Defendant was arrested in October 1992 for possession of 39 vials containing over 1,350 milligrams of pure cocaine. He was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06). The Appellate Division affirmed, concluding that the issue of defendant's knowledge of the weight of the evidence had not been preserved. Subsequently, this Court decided People v Gray ( 86 N.Y.2d 10), holding that defendant was required to preserve the issue of his knowledge of the weight of the drugs.
We are unpersuaded by defendant's additional argument that the Appellate Division below failed to exercise its unique weight of the evidence review power in this case (see, People v Bleakley, 69 N.Y.2d 490). Contrary to defendant's contention, we hold that the Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant (cf., People v Gray, supra). Viewed in this light, the decision below does not "manifest a lack of application" of the Appellate Division's unique weight of the evidence review power (see, Bleakley, supra, at 496). As we observed in Bleakley, the Appellate Division is not required to expressly address that review power by writing in all criminal cases (see, id.).
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.