Opinion
February 11, 1985
Appeal from the Supreme Court, Kings County (Coffinas, 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 that "he could testify in his own behalf". Having failed either to move to withdraw his pleas 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; People v Hoke, 62 N.Y.2d 1022; People v Pellegrino, 60 N.Y.2d 636; People v Ortiz, 105 A.D.2d 809; People v Carrisquello, 106 A.D.2d 513). 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 persistent violent felony offender statute ( see, Penal Law § 70.08) is unconstitutional, we note that this issue, too, has not been preserved for our review ( see, People v Oliver, 63 N.Y.2d 973; People v Cates, 104 A.D.2d 895). In any event, identical arguments have been made in connection with the second felony offender statute and rejected by this court ( People v Carrisquello, supra; 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). We conclude that the reasoning of these cases is equally applicable to the persistent violent felony offender statute, and no reason to depart from them has been proffered to us by the defendant. Similarly, any claim that the sentences imposed are 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 the sentences are unduly harsh and excessive, and should therefore be modified. The sentences were imposed in accordance with the defendant's negotiated plea ( 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), and were the minimum allowable under the law ( see, Penal Law § 70.08, [3] [b]). Mollen, P.J., Titone, Thompson and Bracken, JJ., concur.