Opinion
October 30, 1997
Appeal from Supreme Court, New York County (Carol Berkman, J.).
Since defendant's motion to dismiss the indictment, alleging violation of the joinder requirement of CPL 40.40, was based on a completely different theory ( see, 161 Misc.2d 502) from the theories raised for the first time on appeal, his current claims addressed to CPL 40.40 are unpreserved ( see, People v. Logan, 74 N.Y.2d 859; People v. Gomez, 67 N.Y.2d 843, 844-845) and we decline to review them in the interest of justice. Were we to review them, we would find them to be without merit. The New York County robbery could not have been prosecuted in Kings County merely on the basis of defendant's arrest in Kings County, days later, in possession of the fruits of the robbery ( see, People v. Harris, 116 A.D.2d 588; People v. Leonard, 106 A.D.2d 470, lv denied 64 N.Y.2d 1020; People v. Artis, 74 A.D.2d 644), absent additional circumstances linking the two crimes ( see, People v. Shouder, 237 A.D.2d 545; People v. Danielson, 184 A.D.2d 723, 724, lv denied 80 N.Y.2d 928). We further conclude that CPL 20.40 (4) (f) would not have conferred jurisdiction upon Kings County under the facts presented ( cf., People v. Greenberg, 89 N.Y.2d 553, 555). Defendant's constitutional double jeopardy claim is without merit ( see, People v. Latham, 83 N.Y.2d 233, 238).
We find that, in the present circumstances, the imposition of a monetary fine was inappropriate.
Concur — Murphy, P.J., Rosenberger, Ellerin, Rubin and Tom, JJ.