The People of the State of New York, Respondent, v. Danny Tarangelo, Appellant

The People of the State of New York, Respondent, v Danny Tarangelo, Appellant. [701 NYS2d 904] [MAJORITY] —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. 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 NY2d 358, 363) is unpreserved. Although at the precharge conference defendant briefly alluded (see, People v Borrello, 52 NY2d 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 AD2d 333, lv denied 78 NY2d 1013; People v Santana, 172 AD2d 299, lv denied 77 NY2d 1000). Concur — Nardelli, J. P., Rubin, Andrias, Buckley and Friedman, JJ.