WESLEY, J.:

Defendant John O'Hara, an attorney and frequent candidate for elective office, was convicted of seven crimes arising from his fraudulent filing of a false voter registration form and voting in five separate elections in an election district in which he did not reside. On appeal, defendant contends that the definition of voting residence contained in the Election Law is at odds with our recognition that in today's society, a person can have more than one residence. This case, however, turned on whether a second residence actually existed, not a choice between two. The court's charge correctly reflects the state of New York law and did not, as defendant now contends, direct a verdict against him.

Defendant has lived in a multi-unit apartment building at 579 61st Street in Brooklyn since the 1980s. Until 1992, he registered to vote using the 61st Street address, which was within the 20th Election District and part of the 51st State Assembly District and the 38th Council District of the City of New York. Following redistricting in 1991-1992, 579 61st Street was no longer situated within these districts.

On November 2, 1992, defendant prepared, signed and filed a new voter registration form specifying that he resided at 553 47th Street. This address was located within the newly- redrawn borders of the 20th Election District, the 51st State Assembly District and the 38th Council District of the City of New York. Using the 47th Street address, defendant voted in those districts on five occasions -- November 3, 1992; May 4, 1993; September 14, 1993; September 28, 1993 and November 2, 1993.

Defendant was charged with one count of offering a false instrument for filing in the first degree (Penal Law § 175.35), one count of false registration (Election Law § 17- 104[4]) and five counts of illegal voting (Election Law § 17- 132[3]). Defendant was tried and convicted on all counts of the indictment in 1997. On appeal, the Appellate Division reversed the judgment and ordered a new trial due to an improper missing witness charge, and rejected defendant's remaining contentions as unpreserved or without merit (253 2 560). The second trial ended in a deadlocked jury.

During opening statements of the third trial, defense counsel argued that the only basis for the People's charges rested on the assertion that defendant never lived at 553 47th Street. According to defense counsel, the evidence would establish that, contrary to the People's position, defendant had in fact taken up residence at 553 47th Street. Defense counsel submitted that ultimately the case would turn on the credibility of the witnesses.

At trial, the People called several witnesses. An employee for the phone company testified that defendant maintained a phone at the 61st Street address. There was, however, no record of any telephone service at the 47th Street address. In addition, the owner of 579 61st Street testified that defendant was a tenant at that address from 1990 to 1993.

Raphael Munoz and Roberto Lozano testified that they, along with another individual, moved into 553 47th Street in 1992, with the intent of purchasing the building from Magaly Lucas, the owner, which they eventually did. According to Munoz and Lozano, when the three men first moved in, nobody else was living in the building, the apartment was in shambles and the basement was uninhabitable. Each man testified that some time after moving in, defendant approached them, told them that he was receiving mail at that address and asked them to hold it for him.

Defendant presented the testimony of an employee of the Office of Court Administration who stated that in 1993 defendant's attorney registration form listed 553 47th Street as his home address. Defendant further proffered the testimony of an American Express employee that defendant's billing statements listed the 47th Street address. Several neighbors who had participated in defendant's political campaigns testified that they had on occasion observed him walking into the 47th Street house and that they had understood that he lived there with his former girlfriend, Lucas. One neighbor testified that Josephine and Raymond Vales _- the owners of the house prior to Lucas -- had at some time renovated the basement into a complete apartment. Defendant's mother and aunt also testified that defendant resided at the 47th Street address.

Finally, defendant testified that he moved into the 47th Street address because his ex-girlfriend, Lucas, owned the house. He stated that he kept the 61st Street address for his relatives and used it as an office. When he and Lucas separated, she moved to Manhattan and allowed him to stay in the basement apartment at 47th Street free of charge. Defendant further testified that he never changed his driver's license to the 47th Street address and that he used the 61st Street address for all State and Federal tax forms.

On redirect, the People called Josephine Vales, who testified that when she and her husband owned the 47th Street building they never renovated the basement into a habitable apartment.

During the charge conference, the trial court indicated that it would define residency to the jury as follows:

"According to the law a residence is that place where a person maintains a fixed, permanent and principal home and to which he wherever temporarily located always intends to return.

"Additionally, a candidate who has two residences may choose one to which he has the legitimate, significant and continuing attachment as his residence for purpose of the [E]lection [L]aw. It is for the candidate to decide which address is to be his voting and campaign address.

"However, the address chosen by the defendant as his residence must comport with the definition of residence as I have previously given it to you."

Defense counsel objected to the charge, indicating that he agreed with the court's use of the definition of "residence" found in Election Law § 1-104(22) and that a candidate can choose between multiple residencies. As defense counsel noted, "I don't have a problem with that definition of residency [the charge language involving multiple residencies] being attached to the first definition of residency [the charge language taken directly from Election Law § 1-104(22)]." Defense counsel limited his objection "strictly to the fact that after these two portions of residency are read, the Court refers the jurors back to Election Law Section 1-104 sub 22." According to counsel, "I think that might be somewhat confusing."

Defense counsel further objected to use of the Election Law's definition of residence in reference to the first count of the indictment, which charged defendant with filing a false instrument. Counsel asserted that the only definition which should be used in that regard was that a candidate who has two residences may choose one to which he has a legitimate, significant and continuing attachment. The court did not change its charge.

The jury convicted defendant on all counts of the indictment. The Appellate Division affirmed.

Defendant now argues that the Election Law definition of "residence" cannot be applied literally in a case of dual residency and that a literal application of Election Law § 1- 104(22) is unconstitutional. Defendant further maintains that the indictment should be dismissed because the Election Law definition of "residence" is vague. However, during the jury charge conference, defendant did not object to the specific language of the charge, nor did he raise any of the constitutional issues he now asserts. Thus, those issues are unpreserved (see, People v Cadorette, , 56 NY2d 1007, 1009; People v Whalen, , 59 NY2d 273, 279-280).

Defendant did, however, object to the trial court's second reference to the Election Law definition of "residence" on the ground that it "might be somewhat confusing" for the jury. According to defendant, under the court's charge, his failure to relinquish the 61st Street apartment compromised his assertion that the 47th Street apartment also was his residence for purposes of registration and voting, and therefore, in essence dictated a guilty verdict. We disagree.

In this case, all the counts of the indictment stem from defendant's affirmation in his voter registration form that 553 47th Street was his place of residence pursuant to the Election Law during 1992-1993 for voting purposes. A person commits the offense of "false registration" under the Election Law when he or she "[k]nowingly gives a false residence within the election district when registering as an elector" (Election Law § 17-104[4]). "Illegal voting" is committed when a person "[v]otes or offers or attempts to vote at an election, * * * in an election district or from a place where he does not reside" (Election Law § 17-132 [3]). Finally, a person violates Penal Law § 175.35 "when, knowing that a written instrument contains a false statement or false information, and with intent to defraud the state * * * he offers or presents it to a public office * * * with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records" of that public office.

The Election Law defines residence as "that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return" (Election Law § 1-104[22]). Thus, to be a resident of a place, a person must be physically present with the intent to remain for a time (see, Matter of Palla v Suffolk County Bd. of Elections, , 31 NY2d 36, 47; see also, Williams v Salerno, 792 F2d 323, 327 [2d Cir]). The definition of "residence" comes from traditional notions of domicile (Matter of Palla, supra, 31 NY2d, at 47; see also, Matter of Hosley v Curry, , 85 NY2d 447, 451, rearg denied , 85 NY2d 1033). The determination of an individual's residence is dependent upon an individual's expressed intent and conduct (Matter of Palla, supra, 31 NY2d, at 47).

New York courts have recognized that in this modern and mobile society, an individual can maintain more than one bona fide residence (see, e.g., Matter of Gallagher v Dinkins, 41 AD2d 946, affd , 32 NY2d 839; Matter of Gladwin v Power, 21 AD2d 665, affd , 14 NY2d 771; Matter of Chance v Power, 14 AD2d 595, affd , 10 NY2d 792). However, for the purposes of the Election Law, one cannot create an address solely for the purpose of circumventing residency requirements (Matter of Hosley v Curry, 207 AD2d 116, 118 revd on other grounds , 85 NY2d 447, supra; see also, Matter of Lemishow v Black, 104 AD2d 460, affd , 63 NY2d 684, 685).

The crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical presence "without any aura of sham" (Matter of Gallagher, supra, 41 AD2d at 947). As this Court has stated, an individual having two residences may choose one to which she has "legitimate, significant and continuing attachments as her residence for purposes of the Election Law" (Matter of Ferguson v McNab, , 60 NY2d 598, 600). Generally, where there is no reason to assume that a residence has been asserted merely for the purposes of voting, where no fraud or deception has been practiced and where there is a history of the residence employed, the courts have upheld a fact-finder's determination of residency (Matter of Gallagher, supra, 41 AD2d at 947; see also, Matter of Ferguson, 96 AD2d 916 affd , 60 NY2d 598, supra; Matter of Gladwin, supra; Matter of Chance, supra).

Here, the jury was not asked, as defendant claims, to determine whether as between two residences, defendant picked the more appropriate one. The sole issue here was whether defendant genuinely took up residence at 553 47th Street for voting purposes. In considering whether 553 47th Street was a bona fide residence from which defendant could vote, the jury needed to be informed of the Election Law's definition of residence. The jury was not instructed to convict defendant if it found that he actually maintained two residences. The charge, when read as a whole, was not confusing as a matter of law. It instructed the jury on how to determine whether 553 47th Street could be considered defendant's residence for voting purposes, and it informed the jury that if the proof established that defendant had two residences he could pick one as long as the "residence" he picked (553 47th Street) was indeed a residence of his, and not a sham. The jury applied that instruction to the facts it found, and convicted defendant on all counts of the indictment.

We respond to the dissent with three points. First, the arguments it addresses overwhelmingly are unpreserved; they were not made before the Trial Judge. Second, we cannot agree with the dissent's foundation premise that the Election Law and case law definitions of residence cannot stand side-by-side (an argument plainly not made to the Trial Judge). Finally, the dissent points out that defendant's own testimony, "if credited," would have been sufficient to establish residency under our own Election Law cases (Dissent, at 6). The jury, however, also heard -- and by its verdict credited -- testimony from the phone company employee that defendant had telephone service at 61st Street but not 47th Street; the 61st Street landlord that defendant was a tenant there; and the owners of the 47th Street premises that the basement where defendant says he resided was uninhabitable.

Accordingly, the order of the Appellate Division should be affirmed.

Footnotes

1  The majority correctly points out that defense counsel "ha[d] no problem" with the court charging just the statutory definition and then the Ferguson formulation. It was, however, the court's reiteration of the statutory definition that rendered the charge as a whole "confusing." The majority holds that defense counsel, by withholding his objection until after the reiteration of the statutory standard, somehow is foreclosed from arguing that asking the jury to apply both formulations simultaneously was confusing as a matter of law. We disagree. Counsel obviously viewed the Ferguson standard as modifying the statutory definition and therefore had no objection to the charge until the court erroneously engrafted the statutory definition back onto the Ferguson formulation. Counsel's objection at that point unambiguously alerted the trial court to his assertion that, objectively, the statutory definition and Ferguson formulation cannot abide one another and thus could not be charged conjunctively.

2  We cannot agree that the jury must have credited the testimony that contradicted defendant's position that he resided at the 47th Street apartment. It is impossible to tell what testimony the jury actually credited because the erroneous charge would have allowed the jury to return a guilty verdict even if it fully credited defendant's testimony.

3  Defendant is one of two persons who have been criminally prosecuted for the failure to establish legal residence inside a voting district (see, People v Ramos, slip op [Sup Ct, Bronx Cty, Nov 9, 1999], affd, 223 AD2d 495). There, the defendant was prosecuted criminally for using his inlaws' Bronx County apartment as his legal residence. The prosecutor instructed the grand jury on the issue of residence using only the statutory definition. The Supreme Court dismissed the indictment, holding that "it was not enough to simply read the Election Law definition of residence to the grand jury. Such an instruction did not convey the applicable law in a manner that fairly apprised the grand jury of the issue it had to decide" (slip op at 4). The Appellate Division affirmed.