Opinion
May 27, 1994
Appeal from the Onondaga County Court, Elliott, J.
Present — Pine, J.P., Lawton, Callahan, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: By failing to object at sentencing to the People's failure to amend the predicate felony statement to include a conviction for burglary in the third degree, defendant has failed to preserve for review his present argument that he was illegally sentenced as a second felony offender (see, People v. Callahan, 80 N.Y.2d 273, 281). Moreover, because defendant admitted the prior conviction and raised no constitutional challenge, it would be "futile and pointless" to remit the matter for resentencing (People v. Bouyea, 64 N.Y.2d 1140, 1142; see, People v. Harris, 61 N.Y.2d 9, 20; cf., People v Thomas, 113 A.D.2d 1029).