Opinion
February 9, 2000
Judgment, Supreme Court, New York County (Antonio Brandveen, J.), rendered June 27, 1995, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Ann M. Olson, for Respondent.
Todd A. Landau, for Defendant-Appellant.
NARDELLI, J.P., RUBIN, ANDRIAS, BUCKLEY, FRIEDMAN, JJ.
Defendant's claim that the prosecutor's summation comments and the court's charge improperly permitted the jury to consider a theory of unlawful "remaining" (see, People v. Gaines, 74 N.Y.2d 358, 363) is unpreserved. Although at the precharge conference defendant briefly alluded (see, People v. Borrello, 52 N.Y.2d 952) to some dissatisfaction with the "remaining" theory, he clearly abandoned any protest and acquiesced in the references to "remaining" contained in the summation and charge. Accordingly, we find no preservation as required by CPL 470.05(2) and we decline to review this claim in the interest of justice. Were we to review this claim, we would conclude that reversal is not warranted because the Gaines error caused no prejudice to defendant given the trial evidence (see, People v. Martinez, 173 A.D.2d 333, lv denied 78 N.Y.2d 1013; People v. Santana, 172 A.D.2d 299, lv denied 77 N.Y.2d 1000).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.