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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Michael RODRIQUEZ, Defendant-Appellant.

Decided: February 05, 1998

Before NARDELLI, J.P., and WALLACH, WILLIAMS and MAZZARELLI, JJ. Tami J. Aisenson, for respondent. Elizabeth Sack Felber, for defendant-appellant.

Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered June 30, 1994, convicting defendant, after a jury trial, of robbery in the first degree, attempted robbery in the first degree, robbery in the second degree and attempted robbery in the second degree, and sentencing him as a second felony offender to concurrent terms of 121/212 to 25 years, 71/212 to 15 years, 71/212 to 15 years and 31/212 to 7 years, unanimously affirmed.   Order, same court and Justice, entered on or about October 7, 1996, which denied defendant's motion pursuant to CPL 440.10(1)(g), to vacate the judgment of conviction, unanimously affirmed.

Defendant did not preserve his present claims of error regarding the trial court's preliminary instructions to the jury and we decline to review them in the interest of justice.   We reject defendant's argument that preservation was unnecessary (see, People v. Agramonte, 87 N.Y.2d 765, 642 N.Y.S.2d 594, 665 N.E.2d 164).   In any event, there is no merit to defendant's claim that a portion of the court's preliminary charge may have suggested unauthorized visits to the crime scene (People v. Mays, 232 A.D.2d 332, 649 N.Y.S.2d 409, lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 728, 677 N.E.2d 300;  People v. Goins, 215 A.D.2d 111, 626 N.Y.S.2d 84, lv. denied 86 N.Y.2d 735, 631 N.Y.S.2d 616, 655 N.E.2d 713).

The court's summary denial of defendant's CPL 440.10(1)(g) motion, claiming newly discovered evidence, was appropriate (see, CPL 440.30[4]:  People v. Rodriguez, 243 A.D.2d 279, 662 N.Y.S.2d 317).

We have considered defendant's remaining contentions and find them to be unpreserved and without merit.


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