Opinion
KA 02-02299.
March 18, 2005.
Appeal from a judgment 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.
Before: Scudder, J.P., Kehoe, Gorski, Martoche and Smith, JJ.
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 1 1/3 to 4 years on the underlying conviction of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65). 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; 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 [a]). We further conclude that the sentence is not unduly harsh or severe.