People v. Lee

109 A.D.2d 894

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Murray, J.), rendered December 21, 1983, convicting him of attempted burglary in the second degree, upon his plea of guilty, and sentencing him to 21/2 to 5 years’ imprisonment as a second felony offender under Penal Law § 70.06.

Judgment affirmed.

On appeal, defendant argues that the trial court erred in taking his guilty plea without explicitly advising him that he was giving up his right to testify at trial. Defendant also argues that Penal Law § 70.06 is unconstitutional. Neither of those arguments was raised prior to imposition of sentence or by motion to vacate the sentence, and thus, neither is preserved for appellate review (People v Lemon, 62 NY2d 745; People v Pellegrino, 60 NY2d 636). Moreover, were we to review these issues in the interest of justice, we would find defendant’s arguments without merit (People v Harris, 61 NY2d 9; People v Cates, 104 AD2d 895).

We also reject the contention that defendant’s sentence, which will run concurrently with a 3Vfe to 7-year prison term he previously received as a predicate felon and which was imposed in accordance with defendant’s negotiated plea, is unduly harsh and excessive (see, People v Kazepis, 101 AD2d 816). Lazer, J. P., Gibbons, Thompson and Niehoff, JJ., concur.