Opinion
Argued May 6, 1981
Decided June 11, 1981
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HAROLD J. ROTHWAX, J.
Nathan R. Sobel and David Lenefsky for appellant.
Robert M. Morgenthau, District Attorney (Amyjane Rettew and Robert M. Pitler of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
There was sufficient evidence to sustain the jury verdict on both counts. The contention that the judgment of conviction must be set aside for failure of proof that the conversation to which the evasive answer was addressed did in fact occur was not preserved for appellate review in consequence of the absence of specific reference to the asserted deficiency as a basis for the general motion for a trial order of dismissal (People v Cona, 49 N.Y.2d 26, 33, n 2). Nor was any protest registered concerning the trial court's omission to charge the jury with respect to the necessity for such proof. Indeed, this contention appears to have first been advanced on defendant's behalf on the motion for reargument in the Appellate Division.
We cannot say that it was error to refuse the offer of proof made by defendant with respect to the testimony of the proposed judicial witness.
The contention that the verdicts of the jury were "repugnant" was not preserved for our review in consequence of the failure to register any protest concerning this issue prior to the discharge of the jury when the infirmity in the verdicts, if any, might have been remedied by resubmission to the jury for reconsideration of its verdicts (cf. People v Bruckman, 46 N.Y.2d 1020).
We have examined appellant's other contentions and find them to be without merit.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES and WACHTLER concur; Judges FUCHSBERG and MEYER taking no part.
Order affirmed in a memorandum.