Opinion
March 29, 2000.
Appeal from Judgment of Supreme Court, Monroe County, Wisner, J. — Criminal Mischief, 3rd Degree.
PRESENT: GREEN, J. P., HAYES, HURLBUTT AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum: Defendant's contention that certain issues of fact were removed from the jury's consideration by Supreme Court in its charge is not preserved for our review ( see, CPL 470.05 [2]). In any event, any error is harmless ( see, People v. Brewington , 145 A.D.2d 962, 963, lv denied 74 N.Y.2d 661; see also, People v. Dudley , 201 A.D.2d 664, lv denied 83 N.Y.2d 871). The facts to which the court referred do not establish any element of the crime charged ( cf., People v. Mason ,219 A.D.2d 681; People v. Creeden , 210 A.D.2d 422, 424).