Majority
Judgment, Supreme Court, New York County (Michael Corriero, J.), rendered December 10, 1992, convicting defendant, after a jury trial, of burglary in the second degree, attempted assault in the second degree, and assault in the third degree, and sentencing him to concurrent terms of IVi to 4V¿ years, 1 year, and 1 year, respectively, unanimously affirmed. The matter is remitted to the Supreme Court, New York County for further proceedings pursuant to CPL 460.50 (5).
The jury’s verdict was based on legally sufficient, indeed ample evidence that in entering the premises defendant not only defied a lawful order to stay out, but overcame physical resistance to his entry, while harboring the contemporaneous intent to commit an assaultive crime therein. There was also sufficient evidence of a "physical injury” to support the assault count.
Defendant’s argument that the court should have further defined unlawful entry, as it relates to premises otherwise open to the public (see, Penal Law § 140.00 [5]), is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that any error in this regard was harmless beyond a reasonable doubt in light of the overwhelming evidence of unlawful entry.
We have reviewed defendant’s remaining contentions and find them without merit. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ.