Opinion
April 3, 1987
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Denman, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's claim that repugnant jury verdicts were rendered by an acquittal on two robbery charges and a guilty verdict on the charge of assault in the second degree is without merit. As the Court of Appeals held in People v Tucker ( 55 N.Y.2d 1, 4, rearg denied 55 N.Y.2d 1039), "[w]hen there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury." Under this standard, defendant's acquittal on the charges of robbery in the second and third degrees did not negate an essential element of the assault in the second degree count (see, People v Goodfriend, 64 N.Y.2d 695, 697).
Defendant failed to preserve for appellate review the alleged errors in the court's instructions as well as the alleged variation between the indictment and the court's charge (CPL 470.05) and we decline to exercise our discretion in the interest of justice (CPL 470.15).
Defendant's remaining contention was previously reviewed by this court and found to be without merit (see, People v Fasano, 112 A.D.2d 791, lv denied 65 N.Y.2d 979).