People v Harper
2006 NY Slip Op 08637 [7 NY3d 882]
November 20, 2006
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 17, 2007

The People of the State of New York, Respondent,
Allen Harper, Appellant.

Decided November 20, 2006

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.



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 [*2]defendant failed {**7 NY3d at 883}to object to these instructions, his contention is unpreserved for our review (see People v Brown, 7 NY3d 880 [2006] [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 [1992]).

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur.

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.