Opinion
KA 01-01775
May 2, 2003.
Appeal from a judgment of Chautauqua County Court (Ward, J.), entered July 23, 2001, convicting defendant upon his plea of guilty of criminal possession of a controlled substance in the fifth degree.
KATHLEEN E. CASEY, MIDDLEPORT, FOR DEFENDANT-APPELLANT.
JAMES P. SUBJACK, DISTRICT ATTORNEY, MAYVILLE (TRACEY A. BRUNECZ OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant contends that his guilty plea was obtained by duress and should be vacated. By failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve that contention for our review ( see People v. Hayes, 241 A.D.2d 627, lv denied 90 N.Y.2d 1011; see also People v. Cook, 252 A.D.2d 595; People v. Toledo, 243 A.D.2d 925, 925-926; People v. Newman [appeal No. 1] , 231 A.D.2d 875, lv denied 89 N.Y.2d 944). In any event, to the extent that defendant contends that defense counsel coerced him to plead guilty during an off-the-record discussion, that contention is based upon matters outside the record and may not be considered on direct appeal ( see People v. France, 241 A.D.2d 525, lv denied 91 N.Y.2d 873, 875; see also People v. Gonzalez, 206 A.D.2d 669). The record otherwise establishes that defendant's plea was knowing and voluntary ( see Toledo, 243 A.D.2d at 926; Hayes, 241 A.D.2d at 627-628).