¶1Tom, J., concurs in a separate memorandum and Rosenberger, J., dissents in part in a memorandum, all as follows:
¶2I concur in. the result reached by the majority although I disagree with their initial conclusion that the Ryan issue is unpreserved. As I set forth in my dissent in People v Barnes (204 AD2d 33, 36), in instances where, as here, the defendant moves for an order of dismissal on the ground that the People failed to establish the offense charged, the issue is preserved pursuant to our holding in People v Kilpatrick (143 AD2d 1) and its progeny.
¶3I do agree, however, that in this case an inference may be drawn that defendant was aware of the quantity of cocaine he possessed. In People v Ryan (82 NY2d 497, 505), the Court held that "Often there will be evidence from which the requisite knowledge may be deduced”. Here, the testimony of the arresting officer, Ann Moynihan, reveals that she observed defendant, for a period over one hour, engaged in several (five or six) hand-to-hand transactions with different, unidentified individuals who thereafter left the vicinity. Upon being approached by Officer Moynihan and her partner, Police Officer Richard Duffy, defendant stated that he was waiting for a train, although there were no stations nearby. Defendant subsequently removed 13 vials from his pocket which contained crack cocaine and handed them to Officer Moynihan, who placed defendant under arrest.
¶4While defendant was never charged with the sale of narcotics, the foregoing circumstances coupled with the fact that the furtive hand-to-hand transactions were made in a drug prone area and a significant amount of cash was recovered from defendant, provide sufficient evidence from which the knowledge of the weight may be deduced (People v Ryan, supra).Based on the evidence presented, a jury could reasonably infer that defendant was in fact selling drugs and would, therefore, be cognizant of exactly what he had in his possession. Defendant being a seller or merchant of cocaine could be presumed to have had knowledge of the quantity of the merchandise he was selling, especially since the sales price is based upon the quantity of cocaine. Further, it may be readily inferred that the vials recovered from defendant, which were either hexagonal (flat-sided.) or round, and which contained a blue or a red cap, were coded for weight and pricing purposes.
¶5*190In addition, the weight of the cocaine recovered was more than twice the statutory limit set forth in Penal Law § 220.06 (5), criminal possession of a controlled substance in the fifth degree, of which defendant was ultimately convicted. I, therefore, concur in the affirmance of the IAS Court.