PEOPLE v. VARGAS

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.