PEOPLE v. ROACHE

Judgment affirmed.

At no time did the defendant raise before the suppression court the issue that the physical evidence should have been suppressed because his arrest was effected in his home without a warrant and in the absence of exigent circumstances (see Payton v New York, 445 U.S. 573). By not pursuing that particular issue, the defendant has failed to preserve it for appellate review ( People v Smith, 55 N.Y.2d 888; People v Gonzalez, 55 N.Y.2d 887; People v Nieves, 102 A.D.2d 858; People v Jennings, 94 A.D.2d 802; see People v Kaminski, 58 N.Y.2d 886; cf. People v Gordon, 98 A.D.2d 781; People v Maerling, 89 A.D.2d 1001). Moreover, under the circumstances presented, review of this issue is not warranted as a matter of discretion in the interest of justice.

The record of the defendant's CPL 440 motion is not properly before us at this juncture (cf. People v Mishkin, 20 N.Y.2d 716; People v Gates, 36 A.D.2d 761).

We have considered the defendant's remaining contentions and find them to be without merit. Mangano, J.P., Gibbons, O'Connor and Brown, JJ., concur.