Opinion
January 11, 1988
Appeal from the Supreme Court, Kings County (Quinones, J.).
Ordered that the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings pursuant to CPL 460.50 (5).
The defendant's principal contention is that the prosecution failed to prove that the victim was "physically helpless" within the meaning of Penal Law § 130.00 (7) and § 130.65. However, the defendant did not make any reference to such an argument at the time that he made his motion to dismiss the indictment at the close of the People's case. The defendant's present contention, which is thus being asserted for the first time in this court, has therefore not been properly preserved for review as a matter of law (see, People v Gomez, 67 N.Y.2d 843, 844-845; People v Dekle, 56 N.Y.2d 835, 837; People v Stahl, 53 N.Y.2d 1048, 1050; People v Patel, 132 A.D.2d 498) and we decline to review it in the exercise of our interest of justice jurisdiction.
We further find that the sentence imposed was not unduly harsh or excessive. Bracken, J.P., Kunzeman, Spatt and Harwood, JJ., concur.