Opinion
(1037) KA 99-05439.
September 28, 2001.
(Appeal from Judgment of Supreme Court, Monroe County, Catena, J. — Burglary, 1st Degree.)
PRESENT: PIGOTT, JR., P.J., HAYES, WISNER, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed.
Memorandum:
Defendant failed to preserve for our review his contention that Supreme Court erred in instructing the jury that defendant could be convicted of burglary in the first degree (Penal Law § 140.30, [3]) if he knowingly entered or "remain[ed] unlawfully" in the dwelling of the victim with the intent to commit a crime therein ( see, CPL 470.05; People v. Miles, 281 A.D.2d 331, 332; see also, People v. Salgado, 273 A.D.2d 860, 861, lv denied 95 N.Y.2d 892). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).