Opinion
March 14, 1991
Appeal from the Supreme Court, New York County (Stephen G. Crane, J.).
Police officers observed defendant suspiciously entering and peering into vestibules and hallways of various residential buildings just prior to defendant's entry, through a door marked laundry room, to the basement of 230 East 80th Street. Minutes later, the officers saw defendant exit with a bicycle and, after inquiry, in response to which defendant admitted the bicycle was not his, placed him under arrest. The owner of the bicycle testified that he usually kept it in a padlocked bathroom off the basement corridor, which lock was found broken after the theft.
The sole error asserted by defendant on appeal, that the court's charge to the jury on burglary in the third degree was error in light of People v Gaines ( 74 N.Y.2d 358), was not preserved for review. (CPL 470.05; see, People v Rumph, 38 N.Y.2d 989.) Defendant should have made his position with respect to the instruction known to the court at the time the charge was given so as to afford the court an opportunity to issue a correct or curative instruction. We decline to consider the matter in the interest of justice noting that defendants in People v Gaines (supra), and other authorities relied upon by defendant (see, People v Ferguson, 158 A.D.2d 712; People v Santiago, 158 A.D.2d 996), either requested the correct charge or objected to the improper charge as given, and recognizing that the evidence of defendant's guilt was overwhelming.
Concur — Carro, J.P., Ellerin, Kupferman, Kassal and Rubin, JJ.