Opinion
July 7, 1988
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Callahan, J.P., Doerr, Green, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant contends that his convictions must be reversed and the indictments dismissed because the People's failure to comply with CPL 190.45 (2) resulted in his acquiring transactional immunity (People v. Higley, 70 N.Y.2d 624). Because no motion to dismiss the indictment was made before trial or sentencing (CPL 210.20 [d]; [2]; 255.20), this claim raised for the first time on appeal has not been preserved for review (see, e.g., People v Lawrence, 64 N.Y.2d 200, 203; People v. Iannone, 45 N.Y.2d 589, 599-601; People v. Key, 45 N.Y.2d 111, 116; People v. Reddy, 108 A.D.2d 945, 946; People v. Phillips, 97 Misc.2d 665, 668).
Defendant further contends that reversal is mandated by prosecutorial misconduct in summation. Because defense counsel failed to object to any errors, this issue likewise has not been preserved for our review (CPL 470.05) and we decline to exercise our discretion to review them in the interest of justice (CPL 470.15).
Defendant also asserts that the trial court erred in sentencing him to consecutive sentences for burglary in the third degree (Penal Law § 140.20) and possession of burglar's tools (Penal Law § 140.35). We agree. Because the facts establish that these crimes arose out of a single act, the sentences are modified to run concurrently (Penal Law § 70.25; People v Terry, 104 A.D.2d 572, 573).
We have reviewed defendant's remaining contentions and find them to be without merit.