People v. Tyler

275 A.D.2d 947, 715 N.Y.S.2d 185, 2000 N.Y. App. Div. LEXIS 9669

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant contends that County Court erred in sentencing him as a second felony offender without conducting a hearing to determine whether, as a result of the tolling provision set forth in Penal Law § 70.06 (1) (b) (v), defendant’s prior felony conviction was within the 10-year period set forth in Penal Law § 70.06 (1) (b) (iv). That contention is not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). We note that our determination is without prejudice to a motion to set aside the sentence as illegal (see, CPL 440.20). (Appeal from Judgment of Ontario County Court, Harvey, J. — Forgery, 2nd Degree.) Present — Pigott, Jr., P. J., Pine, Wisner, Kehoe and Balio, JJ.