MEMORANDUM.
The appeal should be dismissed.
The Appellate Division (p 195), after stating its primary reason for reversal, said: "this error was further compounded by the court's total failure * * * to marshal the evidence". In view of the fact that this latter point had not been preserved for review, the court's determination was necessarily predicated at least in part upon an exercise of discretion and thus is not appealable to this court (see People v Dercole, 52 N.Y.2d 956; 957; People v Johnson, 47 N.Y.2d 124, 126). This is so despite the fact that the primary basis for the Appellate Division reversal relating to the charge concerning intent was properly preserved for review.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Appeal dismissed in a memorandum.