Opinion
November 16, 1994
Appeal from the Chautauqua County Court, Himelein, J.
Present — Denman, P.J., Green, Fallon, Wesley and Doerr, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that he was improperly sentenced as a second felony offender because his prior felony conviction is jurisdictionally defective (see, People v. Johnson, 187 A.D.2d 990). That contention, however, cannot be addressed on direct appeal because it is based on documents that were not submitted to the sentencing court (see, People v. Rodriguez, 123 A.D.2d 405, 406; People v. McAllister, 116 A.D.2d 745). Defendant's challenge to the predicate felony conviction should be raised in a proceeding pursuant to CPL article 440 (see, People v. Johnson, 51 N.Y.2d 986, 988; People v Banks, 117 A.D.2d 611).
Defendant has not taken an appeal from the judgment revoking his probation and resentencing him to a term of incarceration (see, CPL 460.10). Consequently, we are also unable to address defendant's challenge to that judgment.
We reject defendant's contention that the aggregate sentence is harsh or excessive.