Opinion
December 17, 1984
Appeal from the Supreme Court, Kings County (Tomei, J.).
Judgments affirmed.
On these appeals, the defendant contends that his pleas of guilty should be vacated because he was not advised at the taking of the pleas of his "rights to testify in his own behalf and have the People prove his guilt beyond a reasonable doubt to a unanimous jury". Having failed either to move to withdraw his plea on this ground prior to the imposition of sentence or to vacate the judgment pursuant to CPL 440.10, the defendant has not preserved, for appellate review the plea allocution's sufficiency (see CPL 470.05, subd 2; People v. Hoke, 62 N.Y.2d 1022; People v Pellegrino, 60 N.Y.2d 636; People v. Mattocks, 100 A.D.2d 944). Moreover, were we to review this issue in the interest of justice, vacatur would not be required because the allocution satisfied the requirements of People v. Harris ( 61 N.Y.2d 9).
With regard to the defendant's contention that the second felony offender statute (see Penal Law, § 70.06) is unconstitutional, we note that this issue, too, has not been preserved for our review (see People v. Cates, 104 A.D.2d 895). In any event, this identical issue has previously been rejected (see People v. Thompson, 105 A.D.2d 762; People v. Rembert, 105 A.D.2d 717; People v. Vasquez, 104 A.D.2d 1012; People v. Cates, supra), and no reason to depart from these rulings has been proffered to us by the defendant. Similarly any claim that the sentence imposed is disproportionate to the crimes for which the defendant stands convicted must be rejected under the circumstances presented herein (see United States v. Ortiz, 742 F.2d 712).
Finally, there is no merit to the defendant's claim that his sentence was harsh and excessive. The defendant received the bargained-for sentence (see People v. La Lande, 104 A.D.2d 1052; People v. Nelson, 104 A.D.2d 1055; People v. Kazepis, 101 A.D.2d 816), which was the minimum allowed by law (Penal Law, § 70.06, subd 3, par [b]; subd 4, par [b]). Mollen, P.J., Gibbons, Thompson and Bracken, JJ., concur.