¶1Under the facts and circumstances of this case, we would not invoke this Court’s interest of justice power to reverse defendant’s conviction. Therefore, we respectfully dissent.
¶2At the outset, we take no issue with the majority’s conclusion that County Court’s instructions to the jury should have included sufficient guidance to enable the jurors to determine whether defendant had a legal duty to seek medical care for Peter. As the majority recognizes, however, defendant’s failure to object to that omission at trial, when corrective action could have been taken by the court, renders that issue unpreserved for appellate review. Although this Court is statutorily authorized to reverse defendant’s conviction as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]; [6] [a]), for the reasons that follow, we disagree with the majority’s decision to exercise that extraordinary power in this case.
¶3Most significantly, it must be observed that the in loco parentis standard, as articulated by the majority, would require not only that “defendant must have intended to assume all obligations incident to a parental relationship,” but also that defendant “actually discharged those [assumed] obligations.” In loco parentis is a civil concept that has been incorporated into criminal law, and the latter element has not heretofore been required to be proved separately in the criminal context (see People v Stephens, 3 AD3d 57, 61 [2003]; People v Goddard, 206 AD2d 653, 655 [1994]; People v Myers, 201 AD2d 855, 856 [1994]; People v Spadaccini, 124 AD2d 859, 860 [1986]; People v Lilly, 71 AD2d 393, 394 [1979]). Without taking a position on the appropriateness of imposing this requirement as a separate element to be proved beyond a reasonable doubt, we believe that this Court should decline to reverse defendant’s conviction on the basis of this error. As the majority correctly acknowledges, the law in this area has not developed to the point that a pattern jury charge has been issued on the in loco parentis doctrine. More*76over, “a reversal by the Appellate Division based on claimed trial error to which objection is not taken presents no question[ ] of law for appellate review” by the Court of Appeals (People v Dercole, 52 NY2d 956, 957 [1981]; see CPL 470.35 [2] [a]; 470.05 [2]). In other words, the legal standard presented here involves a body of law that is still developing, yet the majority’s extensive discussion of that standard is insulated from review.by our State’s highest court because the majority is reversing as a matter of discretion in the interest of justice.
¶4Even if the aforementioned obstacle were removed, discretionary action would not be warranted. Notably, it is unclear under which theory the jury found defendant to be criminally negligent — for pressing his booted foot on his brother’s abdomen, or for failing to seek medical attention. That is, it is unclear that a proper instruction on defendant’s legal duty could have resulted in a finding that he was not criminally culpable. In any event, the facts and circumstances of this case do not cry out for the invocation of our interest of justice power.
¶5For the reasons stated above, we would decline to exercise this Court’s interest of justice jurisdiction to reverse defendant’s conviction.
¶6Malone Jr. and Kavanagh, JJ., concur with Spain, J.; Mercure, A.E J., and McCarthy, J, dissent in a separate opinion by Mercure, A.E J.
¶7Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and indictment dismissed, without prejudice to the People to re-present any appropriate charges to another grand jury.