Opinion
January 29, 1990
Appeal from the Supreme Court, Suffolk County, D'Amaro, J., Mullen, J.
Ordered that the sentence and order are affirmed.
Contrary to the defendant's contention, he could have contested the propriety of his adjudication as a second felony offender on the ground that the 10-year time limitation on the use of prior felonies for the purpose of enhancing punishment (Penal Law § 70.06 [b] [iv]) should not have been extended pursuant to the tolling provision of Penal Law § 70.06 (1) (b) (v) by the period of time during which he was incarcerated after being denied parole. Having failed to timely raise this issue, he has failed to preserve it for appellate review (see, People v. Smith, 73 N.Y.2d 961; People v. Oliver, 63 N.Y.2d 973; People v. Jackson, 151 A.D.2d 781; People v. Blackwell, 151 A.D.2d 686). Nor should the defendant's postconviction application to set aside the sentence serve to preserve the issue of the propriety of his adjudication as a second felony offender where he offers no good reason for having failed to controvert his predicate felony status prior to sentencing (cf., People v. Lasky, 31 N.Y.2d 146, 149; People v Crutchfield, 115 A.D.2d 189), and we decline to reach the issue in the exercise of our interest of justice jurisdiction (see, Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 73; People ex rel. Herbert v. New York State Bd. of Parole, 97 A.D.2d 128; cf., People v. Cappucci, 94 A.D.2d 746; People v. Ostin, 62 A.D.2d 1004).
The sentence was lawfully imposed pursuant to a negotiated plea agreement and, therefore, the defendant should not now be heard to complain that it is unduly harsh and excessive. Thompson, J.P., Lawrence, Harwood and Balletta, JJ., concur.