PEOPLE v. GRAY (2001)

 Defendant was separately charged in two indictments with conspiracy in the second degree (Penal Law § 105.15).   One indictment related to the importation of cocaine into Rochester, and the other to the distribution of that cocaine.   The indictments were consolidated for trial, and defendant was convicted of one count of conspiracy in the second degree and acquitted of the other.   Defendant contends that the two counts of conspiracy in the second degree were multiplicitous (see, People v. Nailor, 268 A.D.2d 695, 696, 701 N.Y.S.2d 476).   Defendant, however, did not move prior to consolidation to dismiss one of the conspiracy counts, and the indictments were consolidated for trial without objection.   By failing to make a timely pretrial motion to dismiss on the ground that the two counts were multiplicitous and waiting until trial to object on that ground, defendant failed to preserve his contention for our review (see, People v. Morey, 224 A.D.2d 730, 731, 637 N.Y.S.2d 500, lv. denied 87 N.Y.2d 1022, 644 N.Y.S.2d 156, 666 N.E.2d 1070;  see also, CPL 210.20[1][a];  [2] ).   In view of the fact that defendant was acquitted of one count, we decline to exercise our power to reach defendant's contention as a matter of discretion in the interest of justice (see, CPL 470.15[6][a] ).

Judgment unanimously affirmed.

MEMORANDUM: