Opinion
November 21, 1984
Appeal from the County Court of Albany County (Clyne, J.).
Defendant was indicted by an Albany County Grand Jury and charged with four counts of second degree burglary. He pleaded guilty to one count of second degree burglary in full satisfaction of the indictment and was sentenced, as a second felony offender, to an indeterminate prison term of 1 to 4 years. Defendant now appeals, contending that the second felony offender statute (Penal Law, § 70.06) is unconstitutional.
Since defendant did not raise his constitutional challenge before the trial court, but raises it for the first time on appeal, the issue has been waived (see People v Drummond, 40 N.Y.2d 990, 993, cert den. sub nom. New York v Luis J., 431 U.S. 908; People v Green, 75 A.D.2d 625, 626). Moreover, since defendant's contention has been repeatedly rejected (see, e.g., People v Butler, 92 A.D.2d 1071; People v Butler, 46 A.D.2d 422; People v Brown, 46 A.D.2d 255), we see no reason to address this issue as an exercise of discretion in the interest of justice.
Judgment affirmed. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.