Opinion
November 15, 1995
Appeal from the Erie County Court, McCarthy, J.
Present — Denman, P.J., Green, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of two counts of felony murder and criminal possession of a weapon in the fourth degree. Defendant did not object to admission of videotapes of the conditional examination of a prosecution witness, thereby failing to preserve for our review his contention that the videotapes were inadmissible because they were not certified and filed pursuant to CPL 660.60 (2) (see, CPL 470.05; People v. Davis, 213 A.D.2d 665; People v. Espinal, 183 A.D.2d 407, lv denied 80 N.Y.2d 830; People v. Williams, 178 A.D.2d 767, 768, lv denied 79 N.Y.2d 1009). Likewise, by failing to raise the issue of repugnancy before the jury was discharged, defendant failed to preserve that issue for our review (see, CPL 470.05; People v Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674; cf., People v Alfaro, 66 N.Y.2d 985, 987). In any event, that issue lacks merit. Although defendant was acquitted of robbery in the first degree, County Court properly instructed the jury that it could consider attempted robbery as a predicate felony for felony murder (see, People v Crum, 160 A.D.2d 892, 893; People v Gibson, 65 A.D.2d 235, 238-240, lv denied 46 N.Y.2d 1080, cert denied 444 U.S. 861). There was a reasonable view of the evidence to support the conclusion that defendant and his accomplice attempted to, but did not, commit robbery, and thus that offense was properly submitted to the jury as a predicate felony even though the indictment did not charge defendant with that offense (see, People v Wroblewski, 109 A.D.2d 39, 44, affd 67 N.Y.2d 933, cert denied 479 U.S. 845).
Lastly, we conclude that imposition of concurrent terms of imprisonment of 25 years to life was, in the circumstances of this case, not unduly harsh or severe.