dissents in a memorandum as follows: I dissent because I disagree with the conclusion of the majority that defendants withdrew their request for an instruction on the applicability of the Statute of Limitations to the conspiracy count, the only count on which defendants were convicted. The majority appears to base its conclusion on defendants’ failure to remind the court of their request during colloquy had immediately before summations and immediately after the charge. While it is true that defendants never mentioned the request after having submitted it in writing, they were under no obligation to do so on penalty of waiving the legal point raised therein. On the contrary, the obligation was on the court to rule on the request promptly after its submission, and its failure to do so entitled defendants to assume that the request had been denied (CPL 300.10 [5]). Nor were defendants *281required to renew the request after the charge was given in order to preserve for appellate review the error caused by its omission from the charge (CPL 470.05 [2]).
The standard to be applied in determining whether defendants withdrew their request is "clear intent” (People v Le Mieux, 51 NY2d 981, 983), a standard entailing a degree of explicitness not demonstrated in the record. At the precharge conference, the Statute of Limitations was first mentioned by defendant Marx’s counsel when he inquired of the court as to whether it was "going to charge the statute of limitations as a factual matter”. The court responded by expressing the opinion, concededly erroneous, that a limitations issue existed only with respect to the counts of the indictment naming Ion Burta as a victim. Burta was a tenant in one of the buildings jointly owned by defendants as to whom a close factual dispute was raised concerning whether any criminal acts were committed by defendants’ alleged coconspirators within the limitations period. Responding to the court, defendant Marx’s counsel stated that his concern was with "another aspect” of the limitations issue, to wit, the legal effect of a jury finding that a separate conspiracy existed as to Marx’s separately owned buildings. Marx’s point was that had the indictment included, as he throughout argued it should have, a separate conspiracy count naming only the buildings separately owned by him, such a count would have been barred by the Statute of Limitations since the indictment did not allege the commission of any overt acts with respect to Marx’s separately owned buildings within the limitations period. Rejecting the possibility that there were multiple conspiracies and adhering to its view that the evidence showed only a single, "continuing conspiracy”, the court then indicated its understanding that a single, timely overt act with respect to any of the buildings was an adequate basis for submitting to the jury proof of untimely overt acts committed with respect to Marx’s separately owned buildings. Such colloquy shows that the attention of the court and parties was focused, at this point, not on the applicability of the Statute of Limitations to the single conspiracy alleged in the indictment, but rather on whether there were multiple conspiracies, and what the legal effect would be of a jury finding that there were. Taken in the context of the entire precharge conference, the colloquy hardly suggests that defendants were withdrawing their limitations request, or, for that matter, any of their other previously submitted written requests not mentioned during the discussions. Nothing else was said remotely bearing on the Statute of Limitations prior to the reading of the charge.
*282After the reading of the charge, the court invited exceptions. Before taking those of defendants, the court made reference to the marking of their requests as a court exhibit, and advised them that "to the extent that I did not follow them * * * they are a part of your exceptions.” Counsel for defendant Marx, citing People v Hoke (62 NY2d 1022), then asked the court for permission to "go through every one”, apparently referring to his written requests. To this the court responded, "You don’t have to, I don’t know if you looked at it [referring to the defense requests marked as court exhibits], [but] I endorse[d] on most of them, covered by charge or reduced [sic, probably refused]. You’re welcomed [sic] to look at them.” It should be noted that while defendants’ requests were marked as court exhibits during the precharge conference, the record does not indicate that the court had annotated them by then, or that defense counsel ever saw the annotated copies. The first time the court made reference to its annotations was in the above colloquy, after the charge had been given, and, certainly, at no time did the court ever tell defense counsel to look at its annotations and make their requests or exceptions in light of them. What counsel for defendant Marx did do was beg the court’s indulgence and again request permission to present specific exceptions to the charge, and the court, apparently relenting, now invited him to do so. Counsel for Marx, followed by counsel for defendant Leisner, then presented various exceptions, but neither mentioned the court’s omission of the requested instruction on the applicability of the Statute of Limitations to the conspiracy count.
I disagree with the majority that this postcharge colloquy "makes it even clearer that [defendants] had withdrawn their request”. Under People v Hoke (supra), when the Trial Judge denies a requested instruction but then gives a different instruction on the same subject without a defense exception, there is preservation only as to the requested instruction but not as to the instruction as given. And, under People v Whalen (59 NY2d 273), when the Trial Judge grants a request to charge and then fails to deliver the charge as requested, the requesting party, in order to avoid a waiver of any objection to the instruction, must bring the variance to the Judge’s attention and explain why the charge as given was inadequate. Given such preservation rules, once the court chooses to speak to a particular point in its charge, prudence dictates that counsel speak to the same point should the court’s rendition be less than satisfactory. However, should the court not speak *283to a particular point, the preservation rules set out in Hoke and Whalen do not come into play, and, provided there was a request for an instruction on that point, counsel ought to be able to rest assured that no further argument is needed in order to preserve the error caused by the court’s failure to speak to the point. Since the court here did not in any manner cover in its charge the Statute of Limitations as it applied to the conspiracy count, defendants’ request for an instruction on that point was all that was required for its preservation.
The failure to charge the limitations issue was not harmless since most of the overt acts submitted to the jury involved conduct that occurred outside the limitations period, and the general verdict returned by the jury makes it impossible to know with reasonable certainty whether the jury had found the commission of at least one timely overt act. Uncertainty in this regard is heightened by the failure of the jury to convict on any of the substantive counts (see, United States v Head, 641 F2d 174, 178-179, on remand 697 F2d 1200, cert denied 462 US 1132).
For these reasons, I would reverse defendants’ conviction on the conspiracy count and remand for a new trial. In so doing, I would also direct the trial court, on remand, to charge another instruction requested by defendants that there could be no conviction for conspiracy without a finding that each defendant joined in the single, over-all conspiracy alleged in the indictment, and that if there was more than one conspiracy, neither defendant could be convicted unless at least one of the conspiracies was the conspiracy alleged in the indictment.
I think the majority overstates the strength of the People’s case in asserting that the record does not contain an evidentiary basis for a finding of more than one conspiracy. At best, the record is ambiguous on this point, and where there is ambiguity as to the scope of the agreement made by a particular defendant, a multiple conspiracy charge such as defendants requested should be given (see, United States v Varelli, 407 F2d 735, 746; United States v Alessi, 638 F2d 466, 472; United States v Alberti, 727 F2d 1055, 1059 ["The determination of whether there are one or more conspiracies in a given case is a classic jury question.”]). Such a charge informs the jury that the scope of each defendant’s agreement must be determined individually from what was proved as to him, and allows it to decide the question of guilt on other than an all- or-nothing basis as to all defendants (United States v Borelli, *284336 F2d 376, 384-387, cert denied sub nom. Cinquegrano v United States, 379 US 960).
Indeed, the People’s argument gives short shrift to the question of whether defendants, as charged, drew together in a single, comprehensive plan to vacate all of the buildings mentioned in the indictment. Instead, their argument largely assumes that the omission of a multiple conspiracy instruction was error, but asserts that the error was harmless since the proof was such that the jury would have convicted defendants in any event for conspiring to vacate their jointly owned buildings. Whether defendants were prejudiced by the failure to charge on multiple conspiracies is a question which need not be addressed in detail, inasmuch as I am of the view that there should in any event be a remand and new trial on other grounds. Suffice to say that given an issue as to the scope of each defendant’s agreement, it is always better that the jury be charged on multiple conspiracies. Among other things, such a charge would obviate the very question of prejudice which the majority is now obliged to address.