Opinion
February 3, 1995
Appeal from the Erie County Court, Rogowski, J.
Present — Lawton, J.P., Fallon, Wesley, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: By failing to controvert the allegations in the second felony offender statement filed by the People pursuant to CPL 400.21 at the time of sentencing, defendant failed to preserve for review his contention that he was improperly sentenced as a second felony offender (see, People v. Smith, 73 N.Y.2d 961; People v. Gessner, 188 A.D.2d 1079, lv denied 81 N.Y.2d 1073).