
    The People of the State of New York, Respondent, v Osita Obieke, Appellant.
    [748 NYS2d 95]
   —Appeal from a judgment of Supreme Court, Monroe County (Mark, J.), entered January 4, 2001, convicting defendant after a jury trial of felony driving while intoxicated (two counts).

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 460.50 (5).

Memorandum: On appeal from a judgment convicting him of two counts of felony driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]; § 1193 [1] [c] [ii]), defendant contends that Supreme Court erred in admitting in evidence at trial a record prepared and maintained by the Office of Emergency Communications in the City of Rochester and a tape recording of 911 telephone calls concerning the incident that resulted in his arrest. Defendant failed to raise his present challenges to the admissibility of that evidence at trial and thus failed to preserve those challenges for our review (see CPL 470.05 [2]; People v Antongiorgi, 242 AD2d 578, lv denied 91 NY2d 832), and we decline to exercise our power to review them as a matter of discretion in the interest of justice (see 470.15 [6] [a]). Defendant further contends that the court erred in denying his request to charge the jury that it must find that he “voluntarily consumed alcohol” in order to convict him of common-law driving while intoxicated (People v Cruz, 48 NY2d 419, 428, appeal dismissed 446 US 901 [emphasis added]; see People v Gary, 233 AD2d 939). We conclude that any error in the court’s omission of the word “voluntarily” from the charge is harmless. The evidence of defendant’s guilt is overwhelming, and there is no reasonable possibility that defendant otherwise would have been acquitted (see People v Woodward, 219 AD2d 837, 838, lv denied 87 NY2d 1027). The sentence is not unduly harsh or severe. Present — Pigott, Jr., P.J., Green, Hayes, Kehoe and Gorski, JJ. [See 186 Misc 2d 708.]  