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Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York, Plaintiff-Respondent, v. Leonard ZABOROWSKI, Defendant-Appellant.

Decided: March 18, 2005

PRESENT:  SCUDDER, J.P., KEHOE, GORSKI, MARTOCHE, AND SMITH, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy of Counsel), for Defendant-Appellant. Frank J. Clark, District Attorney, Buffalo (Steven Meyer of Counsel), for Plaintiff-Respondent.

Defendant appeals from a judgment revoking his probation and sentencing him to an indeterminate term of incarceration of 1 1/313 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 N.Y.2d 192, 195, 608 N.Y.S.2d 945, 630 N.E.2d 641;  People v. Thomas, 53 N.Y.2d 338, 343 n. 2, 441 N.Y.S.2d 650, 424 N.E.2d 537).   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.

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


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