PEOPLE v. AUSTIN (2025)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (E. Niki Warin, J.), rendered October 26, 2022, convicting him of burglary in the third degree and criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his sentence as a second felony offender (see Penal Law § 70.06) was unconstitutional is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court (see CPL 470.05[2];  People v. Rosen, 96 N.Y.2d 329, 335;  People v. Munoz, 237 AD3d 1110, 1111) and did not contest his criminal history, including the relevant periods of incarceration (see People v. Hernandez, 43 NY3d 591).  We decline to review the contention in the exercise of our interest of justice jurisdiction (see People v. Munoz, 237 AD3d at 1111).

The sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80).

IANNACCI, J.P., CHRISTOPHER, VENTURA and HOM, JJ., concur.