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

The People of the State of New York, Respondent, v Ernest Allen, Appellant. [MAJORITY] —Judgment, Supreme Court, New York County (Ira F. Beal, J.) rendered July 25, 1989, by which defendant was convicted, after a jury trial, of attempted robbery in the second degree and sentenced, as a predicate felon, to a term of 2Vz to 5 years in prison, unanimously affirmed. Defendant and a co-defendant were arrested after attempting a robbery on the southbound platform of the Houston Street IRT subway during the early morning hours on October 6, 1988. Two plainclothes Transit Police Officers on the northbound platform, from a distance of approximately 400 feet, observed the defendant throw the victim to the ground. They arrived on the southbound platform as the defendant was attempting to wrestle the victim onto the subway tracks, and the accomplice was attempting to leave the scene. Defendant’s present argument regarding the trial court’s response to the jury’s question concerning whether it could render separate verdicts with respect to defendant and his co-defendant, to the effect that while separate verdicts were "technically required * * * the verdict must be the same” as to the defendants, was not preserved for appellate review. Nor did he preserve a "question of law” within the meaning of CPL 470.05 (2) (People v Padro, 75 NY2d 820, 821, rearg denied 75 NY2d 1005). We find no reason to review the matter in the interests of justice. We note, parenthetically, that no reasonable view of the evidence would support a finding of guilt as to the co-defendant but not the defendant. Concur— Carro, J. P., Wallach, Kupferman and Smith, JJ.