PEOPLE v. LAFOND

Ordered that the judgment is affirmed.

The defendant contends that the People's case rested solely on the theory that he had unlawfully entered into a dwelling, and thus it was reversible error for the court to charge the portion of Penal Law § 140.30 which imposes liability for "remain[ing] unlawfully" there (see, People v. Gaines, 74 N.Y.2d 358). This contention is unpreserved for appellate review (see, CPL 470.05; People v. Lipton, 54 N.Y.2d 340; People v. Crum, 175 A.D.2d 136).

In any event, the defendant's contention is without merit. Since the evidence permitted the jury to infer guilt under either theory, unlawful entry or unlawful remaining, the trial court properly charged the jury that it could determine guilt under either theory. Bracken, J.P., O'Brien, Santucci and Florio, JJ., concur.