Decided September 22, 2009

People v Kolupa, 59 AD3d 1134, affirmed.

APPEARANCES OF COUNSEL

Frank J. Nebush, Jr., Public Defender, Criminal Division, Utica (Esther Cohen Lee of counsel), for appellant.

Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.

Memorandum.

The order of the Appellate Division should be affirmed.{**13 NY3d at 787}

Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial [*2]court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]). Defendant's remaining contention is without merit.

Smith, J. (concurring). Today's decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004, R.S. Smith, J., concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur; Judge Smith concurs in a separate concurring opinion.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed in a memorandum.