People v Zaborowski

2005 NYSlipOp 02028

March 18, 2005

Appellate Division, Fourth Department

As corrected through Wednesday, May 18, 2005

The People of the State of New York, Respondent, v Leonard Zaborowski, Appellant.

—[*1]Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered August 28, 2002. The judgment revoked defendant's probation and imposed a sentence of incarceration.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed.

Memorandum: Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of 11/3 to 4 years on the underlying conviction of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]). Defendant challenges the constitutionality of Penal Law § 60.01 (3) (a) and CPL 410.70 for the first time on appeal and thus has failed to preserve that challenge for our review (see People v Voliton, 83 NY2d 192, 195 [1994]; People v Thomas, 53 NY2d 338, 343 n 2 [1981]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We further conclude that the sentence is not unduly harsh or severe. Present—Scudder, J.P., Kehoe, Gorski, Martoche and Smith, JJ.