Opinion
February 4, 1994
Appeal from the Erie County Court, Rogowski, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Davis, JJ.
Judgment unanimously affirmed. Memorandum: By failing to move to dismiss the indictment before trial on statutory speedy trial grounds, defendant waived any argument that he was denied his right to a speedy trial (see, People v. Lawrence, 64 N.Y.2d 200; People v. White, 2 N.Y.2d 220, cert denied 353 U.S. 969; People v Maldonado, 154 A.D.2d 890, lv denied 75 N.Y.2d 772). Defendant was accorded the proper procedure pursuant to CPL 200.60. When defendant chose to remain silent with respect to the previous conviction, the People were entitled to prove the prior conviction because it constituted an element of a charged crime. We reject defendant's argument that the prosecutor's attempt to prove the prior conviction, although unsuccessful, amounted to misconduct. We decline to modify defendant's sentence in the interest of justice.