People v. Knaack

204 A.D.2d 1014, 614 N.Y.S.2d 955, 1994 N.Y. App. Div. LEXIS 6833

Opinion

—Judgment unanimously affirmed. Memorandum: By failing to object at sentencing to the People’s failure to amend the predicate felony statement to include a conviction for burglary in the third degree, defendant has failed to preserve for review his present argument that he was illegally sentenced as a second felony offender (see, People v Callahan, 80 NY2d 273, 281). Moreover, because defendant admitted the prior conviction and raised no constitutional challenge, it would be "futile and pointless” to remit the matter for resentencing (People v Bouyea, 64 NY2d 1140, 1142; see, People v Harris, 61 NY2d 9, 20; cf., People v Thomas, 113 AD2d 1029). (Appeal from Judgment of Onondaga County Court, Elliott, J.—Attempted Burglary, 2nd Degree.) Present—Pine, J. P., Lawton, Callahan, Doerr and Davis, JJ.