Opinion
January 14, 1985
Appeal from the Supreme Court, Kings County (Pincus, J.).
Judgment affirmed.
On this appeal, the defendant contends that her plea of guilty should be vacated because she was not advised at the taking of the plea of her "rights to cross-examine the People's witnesses and to make the People prove her guilt beyond a reasonable doubt to a unanimous jury". Having failed either to move to withdraw her plea on this ground prior to the imposition of sentence or subsequent thereto pursuant to CPL 440.10, the defendant has not preserved for appellate review the sufficiency of the plea allocution (see CPL 470.05, subd 2; People v. Hoke, 62 N.Y.2d 1022; People v. Pellegrino, 60 N.Y.2d 636; People v. Mattocks, 100 A.D.2d 944; People v. Ortiz, 105 A.D.2d 809). 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 second felony offender statute (see Penal Law, § 70.06) 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, this identical issue has previously been rejected (see 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), and no reason to depart from these rulings has been proffered to us by the defendant. Similarly, any claim that the sentence imposed is disproportionate to the crime 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 her sentence, which was imposed in accordance with the plea agreement (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), was unduly harsh and excessive. Moreover, we find no basis to modify the sentence in the interest of justice (see People v. Suitte, 90 A.D.2d 80). Mollen, P.J., Bracken, O'Connor and Niehoff, JJ., concur.