Opinion
October 7, 1992
Appeal from the Allegany County Court, Sprague, J.
Present — Denman, P.J., Green, Balio, Boehm and Davis, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that the trial court erred in failing to instruct the jury on the voluntariness of his statement to the police (see, CPL 710.70). Because defendant failed, during the trial, to raise a factual dispute by adducing evidence or otherwise contending that the statement was involuntarily made, the trial court was not required to submit the issue to the jury (see, CPL 710.70; People v Cefaro, 23 N.Y.2d 283, 288; People v Betances, 165 A.D.2d 754, lv denied 76 N.Y.2d 1019; People v Estrada, 109 A.D.2d 977, 980). Further, since defendant neither requested that the court submit the issue to the jury nor objected to the charge as given, the failure to instruct the jury pursuant to CPL 710.70 (3) has not been preserved for our review (see, CPL 470.05; People v Cerrato, 24 N.Y.2d 1, 10, cert denied 397 U.S. 940; People v Cefaro, supra, at 288-289; People v Gaddy, 94 A.D.2d 892, 893). In light of the overwhelming evidence of guilt, moreover, any error in failing to instruct the jury on the voluntariness of defendant's statement was harmless (see, People v Flecha, 60 N.Y.2d 766; People v Bakker, 133 A.D.2d 161, 163).
We also find no merit to defendant's argument that the attempted kidnapping charge merged into the robbery charge. The merger doctrine does not apply because the attempted abduction was not "incidental to and inseparable from" the robbery (People v Smith, 47 N.Y.2d 83, 87). The robbery was fully consummated before the abduction was attempted and thus no merger occurred (see, People v Smith, supra; People v Rodena, 170 A.D.2d 418, lv denied 77 N.Y.2d 966; People v Epps, 160 A.D.2d 171, lv denied 76 N.Y.2d 734).
Defendant failed to preserve his objection to the prosecutor's summation (see, CPL 470.05; People v Carter, 154 A.D.2d 883, lv denied 74 N.Y.2d 947) and we decline to review the issue in the interest of justice (see, CPL 470.15).