Opinion
Decided November 20, 2006.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered June 6, 2006. The Appellate Division affirmed a judgment of the Supreme Court, Kings County (Edward M. Rappaport, J.), which had convicted defendant, upon a jury verdict, of robbery in the first degree, robbery in the second degree and criminal possession of a weapon in the third degree.
People v. Harper, 32 AD3d 16, affirmed.
Appellate Advocates, New York City ( Lynn W.L. Fahey and De Nice Powell of counsel), for appellant.
Charles J. Hynes, District Attorney, Brooklyn ( Thomas S. Burka of counsel), for respondent.
Before: Chief Judge KAYEand Judges CIPARICK, ROSENBLATT, GRAFFEO, READ, SMITH and PIGOTT.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed. During his preliminary instructions to the jury, the trial judge outlined the elements of each of the three robbery counts with which the defendant was charged. Because defendant failed to object to these instructions, his contention is unpreserved for our review ( see People v. Brown, 7 NY3d 880 decided today).
Defendant's challenge to the hearing court's determination involves a mixed question of law and fact and our review is therefore limited to whether there is record support for the determinations of the courts below. Because the Appellate Division affirmed the denial of the motion to suppress without disturbing the court's finding of abandonment, and there is record evidence that would support that determination, we are bound by the suppression court's finding ( see People v Hollman, 79 NY2d 181, 193-194).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.