63 N.Y.2d at 975 “The rule applied here differs from that applied in People v Morse (62 NY2d 205, 214, n 2) and similar cases in which we held that no objection was necessary in the trial court to preserve the issue on appeal because the court had exceeded its sentencing powers.”7 citing cases
- People v. Cortland (Allison), No. 2020 NYSlipOp 50150(U) (N.Y. App. Term. Jan. 30, 2020).publishedDefendant's contention that Penal Law § 260.10 (1) is unconstitutionally vague on its face and as applied is unpreserved for appellate review ( see People v Oliver , 63 NY2d 973, 975 [1984]; People v Brown , 64 AD3d 611 [2009]).
- People v. Rupert, 136 A.D.3d 1311 (N.Y. App. Div. 4th Dep't 2016).published Defendant failed to object to the testimony of a police officer at the persistent violent felony offender hearing, elicited during cross-examination, regarding a statement that defendant made following his arrest, and which was not include…
- People v. LaRoche, 44 Misc. 3d 20 (N.Y. App. Term. 2014).publishedPeople v Oliver, 63 NY2d 973, 975 [1984]; People v Knox, 45 AD3d 274 [2007]; Anthony v Town of N. Hempstead, 2 AD3d at 379 ; People v Greene, 13 Misc 3d 137[A] , 2006 NY Slip Op 52215[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2006]).
- People v. Laroche, 27 Misc. 3d 97 (N.Y. App. Term. 2010).publishedIn the trial court, however, defendant made no specific arguments regarding North Hempstead Town Code § 70-231 and, therefore, her challenge to that section is unpreserved for appellate review (see People v Oliver, 63 NY2d 973, 975 [1984]).
- People v. Brown, 64 A.D.3d 611 (N.Y. App. Div. 2d Dep't 2009).publishedThe defendant’s contention that Penal Law § 70.45 (1), which imposes a mandatory period of postrelease supervision, violates both the United States and New York Constitutions is unpreserved for appellate review (see People v Oliver, 63 NY2…
- People v. Johnson, 61 A.D.3d 892 (N.Y. App. Div. 2d Dep't 2009).publishedIn any event, the defendant’s sentence was fair and there is no indication it was imposed in retaliation for not accepting the prosecution’s pretrial plea offer (see People v Oliver, 63 NY2d 973, 975 [1984]; People v Pena, 50 NY2d 400, 411…
- People v. Samms, 731 N.E.2d 1118 (N.Y. 2000).publishedIndeed, Oliver contrasted such procedural challenges with Morse-type challenges, in which “no objection was necessary in the trial court to preserve the issue on appeal because the court had exceeded its sentencing powers” (People v Oliver…
63 N.Y.2d at 974 challenge to the manner in which a persistent felony offender hearing was conducted3 citing cases
- People v. Brazeal, 2026 NY Slip Op 03910 (N.Y. 2026).published (challenge to the manner in which a persistent felony offender hearing was conducted)
- People v. Bynum, 68 A.D.3d 1348 (N.Y. App. Div. 3d Dep't 2009).publishedFinally, defendant’s claim that he was improperly sentenced as a second felony offender because he was not informed of his rights under CPL 400.21 is not preserved for review as defendant failed to controvert the legitimacy of his prior co…
- People v. Riddick, 34 A.D.3d 923 (N.Y. App. Div. 3d Dep't 2006).publishedNext, defendant’s challenge to the constitutionality of the depraved indifference murder statute (see Penal Law § 125.25 [2]) is also unpreserved as defendant failed to raise this issue before County Court (see People v Swartz, 130 AD2d 28…
Other citing cases
- People v. Omaro, 197 A.D.2d 711 (N.Y. App. Div. 2d Dep't 1993).published
v.
Harold Oliver, Appellant
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be affirmed.
Defendant was convicted by a trial jury of burglary in the third degree, petit larceny, criminal mischief in the fourth degree, and criminal possession of stolen property in the third degree. After the verdict was rendered, a hearing was held pursuant to CPL 400.20 to determine if he should be sentenced as a persistent felony offender. At the conclusion of the hearing the court determined that defendant was a persistent felony offender and sentenced him to various concurrent indeterminate terms of imprisonment, the longest of which had a minimum term of 15 years and a maximum term of life. On appeal defendant challenges the constitutionality of CPL 400.20 and of the manner in which the hearing was held and he also contends the sentence was excessive and based upon incompetent evidence.
Insofar as defendant challenges the constitutionality of CPL 400.20 and the manner in which he was determined to be a persistent felony offender, he has forfeited the objections now raised. He participated fully in the hearing[*975] with the aid of counsel and without asserting those objections before the trial court. Having failed to do so, he may not challenge the constitutionality of the statute or the proceeding for the first time on appeal (People v McGowen, 42 NY2d 905; People v Drummond, 40 NY2d 990). The rule applied here differs from that applied in People v Morse (62 NY2d 205, 214, n 2) and similar cases in which we held that no objection was necessary in the trial court to preserve the issue on appeal because the court had exceeded its sentencing powers.
Insofar as defendant contends that certain evidence was improperly received, the evidence was either not objected to at the hearing or the objections made were not sufficiently specific or correct to preserve the errors now asserted.
Finally, we find no abuse of defendant’s due process rights because the prosecution sought an enhanced sentence after trial although before trial it had offered defendant a plea to a reduced charge (see Bordenkircher v Hayes, 434 US 357).
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.
Order affirmed in a memorandum.