People v. Fabre

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (McDonald, J.), rendered January 19, 2000, convicting him of burglary in the second degree, criminal mischief in the fourth degree, and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the People’s case rested solely on the theory that he had unlawfully entered a dwelling, and thus it was reversible error for the trial court to charge the portion of Penal Law § 140.25 which concerns “remain[ing] unlawfully” in a dwelling (see, People v Gaines, 74 NY2d 358). This contention is unpreserved for appellate review and we decline to reach it in the exercise of our interest of justice jurisdiction. Santucci, J. P., Goldstein, McGinity and Crane, JJ., concur.