This memorandum is uncorrected and subject to revision before publication in the New York Reports.

----------------------

2 No. 187 SSM 34

The People &c., Respondent, v. Allen Harper, Appellant.

Submitted by Lynn W. L. Fahey, for appellant.

Submitted by Thomas S. Burka, for respondent.

MEMORANDUM:

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 defendant failed to object to these instructions, his contention is unpreserved for our review (see People v Brown, __ NY3d __, 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]).

* * * * * * * * *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a memorandum. Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read, Smith and Pigott concur.

Decided November 20, 2006