Appellate Division of the Supreme Court of New York, 2005

People v. Zaborowski

People v. Zaborowski
Appellate Division of the Supreme Court of New York · Decided March 18, 2005
16 A.D.3d 1058; 792 N.Y.S.2d 755; 2005 N.Y. App. Div. LEXIS 2835
People v. Zaborowski

Opinion of the Court

— Appeal from a *1059judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered August 28, 2002. The judgment revoked defendant’s probation and imposed a sentence of incarceration.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of lxh to 4 years on the underlying conviction of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]). Defendant challenges the constitutionality of Penal Law § 60.01 (3) (a) and CPL 410.70 for the first time on appeal and thus has failed to preserve that challenge for our review (see People v Voliton, 83 NY2d 192, 195 [1994]; People v Thomas, 53 NY2d 338, 343 n 2 [1981]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We further conclude that the sentence is not unduly harsh or severe. Present—Scudder, J.P., Kehoe, Gorski, Martoche and Smith, JJ.

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