The People of the State of New York, Respondent, v. Mark Virgo, Appellant

(October 26, 1993) The People of the State of New York, Respondent, v Mark Virgo, Appellant. [604 NYS2d 710] [MAJORITY] —Judgment, Supreme Court, New York County (Herbert Altman, J., at hearing to suppress; Richard Failla, J., at trial and sentence), rendered June 10, 1991, convicting defendant, upon a jury verdict, of robbery in the first degree and robbery in the second degree (two counts), and sentencing him, as a second felony offender, to concurrent terms of 7 to 14 years and 5 to 10 years for the first and second degree robbery of William Tehan, to run consecutive to a prison term of 5 to 10 years for the second degree robbery of Virgil Day, unanimously affirmed. Defendant failed to preserve for appellate review as a matter of law the issue of whether the trial court erred in its instruction concerning the jury’s consideration of the evidence against each defendant separately (People v Thomas, 50 NY2d 467), and we decline to review in the interest of justice. Were we to consider the issue, we would find the charge, considered in its entirety, proper. Defendant’s contention that his conviction for robbery in the first degree should be reduced to one for robbery in the second degree because the evidence did not establish serious physical injury is also unpreserved for appellate review, and we decline to review it in the interest of justice. Were we to review this contention, we would find it to be without merit since the evidence established a severe nasal fracture, consequent surgery and residual impairment. We have considered defendant’s remaining contentions and find them meritless. Concur—Murphy, P. J., Kupferman, Ross and Rubin, JJ.