Opinion
Argued January 7, 1983
Decided January 18, 1983
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, DONALD J. MARK, J.
Donald O. Chesworth, Jr., District Attorney ( Kenneth R. Fisher of counsel), for appellant.
Alfred P. Kremer for respondent.
MEMORANDUM.
The appeal should be dismissed.
The reversal at the Appellate Division was based on that court's determination that the charge to the jury with reference to defendant's unexplained flight from the police officers was erroneous. Inasmuch, however, as defendant's exception to the charge was not adequate to preserve that issue for appellate review, the determination at the Appellate Division was necessarily made as a matter of discretion in the interest of justice (CPL 470.15, subd 3, par [c]) and thus is not appealable to our court (CPL 450.90, subd 2, par [a]; People v Dercole, 52 N.Y.2d 956).
Appeal dismissed in a memorandum.