OPINION OF THE COURT

Order affirmed. The issues sought to be raised by defendant are not preserved for this Court’s review and, therefore, the Court cannot consider the merits.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacos a. Judge Hancock, Jr., dissents and votes to reverse, concluding that defendant preserved the constitutional issue whether the application of Penal Law §§ 40.15 and 25.00 unconstitutionally shifted the burden of proof to defendant, and that the trial court’s charge to the jury failed to safeguard against the insanity affirmative defense statute *1060 impermissibly shifting to defendant the burden of disproving intent (see, People v Kohl, 72 NY2d 191, 198-199).