People v. Ellington (238 A.D.2d 929, 1997)

—Judgment unanimously affirmed. Memorandum: Defendant contends that the evidence was insufficient to warrant submission of the count charging depraved mind murder (Penal Law § 125.25 [2]) to the jury. That contention is unpreserved for our review (see, CPL 470.05 [2]; People v Gray, 86 NY2d 10), and we decline to exercise our power to address it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Supreme Court, Monroe County, Sirkin, J.—Murder, 2nd Degree.) Present—Green, J. P., Lawton, Doerr, Balio and Fallon, JJ.