Opinion
December 23, 1994
Appeal from the Jefferson County Court, Clary, J.
Present — Denman, P.J., Green, Balio, Callahan and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: The record supports the suppression court's finding that defendant, despite his intellectual limitations, knowingly, voluntarily and intelligently waived his Miranda rights and agreed to speak to the police (see, People v Ludlow, 187 A.D.2d 936, lv denied 81 N.Y.2d 888; People v Matthews, 148 A.D.2d 272, appeal dismissed 74 N.Y.2d 950).
The contention that defendant was improperly sentenced as a second felony offender is not properly before us. That contention cannot be addressed on direct appeal from the judgment because it involves matters dehors the record (see, People v Mays, 209 A.D.2d 1019; People v Rodriguez, 123 A.D.2d 405, 406, lv denied 69 N.Y.2d 832). Further, although those matters were addressed in defendant's motion to set aside the sentence pursuant to CPL 440.20, defendant has not sought permission to appeal from the denial of that motion (see, CPL 450.15; People v Kihm, 143 A.D.2d 199, lv denied 72 N.Y.2d 958).