People v. Miller

Tom, J., concurs in a separate memorandum and Rosenberger, J., dissents in part in a memorandum, all as follows:

Tom, J. (concurring).

I concur in. the result reached by the majority although I disagree with their initial conclusion that the Ryan issue is unpreserved. As I set forth in my dissent in People v Barnes (204 AD2d 33, 36), in instances where, as here, the defendant moves for an order of dismissal on the ground that the People failed to establish the offense charged, the issue is preserved pursuant to our holding in People v Kilpatrick (143 AD2d 1) and its progeny.

I do agree, however,…