People v. Morcilio

115 A.D.2d 568, 496 N.Y.S.2d 700, 1985 N.Y. App. Div. LEXIS 54985

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered June 28, 1984, convicting him of criminal sale of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

Defendant contends that the court erred in sentencing him as a second felony offender. He claims that at the plea hearing on the predicate felony he had not been fully informed of the consequences of the waiver of his rights. Nevertheless, the record shows that at the present hearing defendant did not cite any specific deficiency in the predicate felony conviction, did not properly challenge that conviction (see, CPL 400.21 [8]) and, as part of his plea bargain in this proceeding, affirmatively waived that challenge.

Defendant further contends that the plea allocution in the proceeding at bar was insufficient. "Not having raised the issue by motion to vacate or otherwise in the court of first instance, no error has been preserved for review” (People v Warren, 47 NY2d 740, 741). Had the question been properly preserved for review, however, we would find no merit to defendant’s contention (see, People v Harris, 61 NY2d 9).

Finally, we find no merit to defendant’s contention that the sentence was unduly harsh. Gibbons, J. P., Bracken, Kunzeman and Kooper, JJ., concur.