People v. Edwards

126 A.D.2d 949, 511 N.Y.S.2d 720, 1987 N.Y. App. Div. LEXIS 42055

Opinion

unanimously affirmed. Memorandum: Defendant’s failure to object to, or controvert the use of, his prior felony conviction set forth in the CPL 400.21 statement constitutes a waiver of any objection to his sentencing as a second felony offender (People v Banks, 117 AD2d 611; People v Barnes, 99 AD2d 877).

Defendant’s claims that the prosecutor was guilty of misconduct and that the court failed to instruct the jury adequately as to the defense of justification were not preserved for our review (CPL 470.05 [2]), and we decline to exercise our discretion in the interests of justice (CPL 470.15 [3] [c]; [6] [a]). We find defendant’s remaining contentions to lack merit. (Appeal from judgment of Supreme Court, Erie County, Flynn, J.— assault, second degree.) Present—Callahan, J. P., Denman, Boomer, Balio and Lawton, JJ.