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THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MANNY VARGAS, Appellant.

Ordered that the judgment is affirmed.

The defendant's claims regarding the legal sufficiency of the evidence are not preserved for appellate review (see, CPL 470.05; People v Udzinski, 146 A.D.2d 245, 250). In any event, viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt.

It was improper for the prosecutor to argue during summation that one of the People's witnesses invoked his Fifth Amendment right against self-incrimination in order to protect the defendant (see, People v Berg, 59 N.Y.2d 294, 299; Rado v Connecticut, 607 F.2d 572, 581). This error, however, was harmless given the court's charge that a witness's refusal to testify on Fifth Amendment grounds could not be considered in assessing the defendant's guilt (see, People v Berg, supra).

The defendant's remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J.P., O'Brien, Ritter and Joy, JJ., concur.

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PEOPLE v. VARGAS
(Dec 6, 1993)