Opinion
February 9, 1987
Appeal from the County Court, Putnam County (Hickman, J.).
Ordered that the judgment is affirmed.
On this record, we cannot agree with defendant that the denial, as untimely, of his midtrial motion to suppress physical evidence constituted an abuse of discretion (see, CPL 255.20). The trial court did not err in failing to apply the exception to the 45-day rule provided in CPL 255.20 (3) because the motion was based on grounds which the defendant could have, with due diligence, presented before the trial (see, People v. Longwood, 116 A.D.2d 590; People v. Jones, 114 A.D.2d 974).
The defendant's arguments with respect to the hearing to determine whether he was to be sentenced as a persistent felony offender have not been preserved (see, People v. Oliver, 63 N.Y.2d 973). In any event, there is no merit to the defendant's contentions in that regard.
Under the circumstances of this case, and in view of the defendant's prior record, we see no reason to disturb the sentence imposed (see, People v. Suitte, 90 A.D.2d 80). Mollen, P.J., Thompson, Brown and Niehoff, JJ., concur.