PEOPLE v. DUREN

Ordered that the judgment is affirmed.

Inasmuch as the crime took place in the lobby of the defendant's apartment building and not "in his dwelling" (Penal Law § 35.15 [a] [i]; People v Gaines, 229 AD2d 448), the court properly refused to charge, as part of the law of justification, that the defendant did not have a duty to retreat. Upon the exercise of our factual review power, we are satisfied that the guilty verdict was not against the weight of the evidence ( see, CPL 470.15).

The defendant's sentence is not excessive ( see, People v Suitte, 90 AD2d 80). The defendant's remaining argument is unpreserved and we decline to reach it in the exercise of our interest of justice jurisdiction.