I concur in the result and in the majority’s analysis of the issues with the exception of the preservation analysis of the legal sufficiency of the evidence at the first trial. Quoting from People v Smith (8 AD3d 965, 966 [2004]), the majority concludes that, despite the fact that defendant at the first trial failed to preserve for our review his contention with respect to the alleged legal insufficiency of the *1735evidence concerning sexual gratification, we may nevertheless review that contention “ ‘for purposes of double jeopardy analysis.’ ” It is well settled that a contention that double jeopardy rights were violated need not be preserved for our review (see People v Michael, 48 NY2d 1, 6-8 [1979]) but, in my view, a defendant must first preserve for our review the underlying issue concerning the alleged legal insufficiency of the evidence before we may determine whether the defendant’s double jeopardy rights were violated (see People v Farakesh, 244 AD2d 568 [1997], lv denied 91 NY2d 1007 [1998]; see generally People v Gray, 86 NY2d 10, 19 [1995]). Present—Centra, J.P., Carni, Lindley, Green and Gorski, JJ.