Opinion
May 18, 1995
Appeal from the Supreme Court, New York County (Franklin Weissberg, J.).
Defendant's contention that his plea was not voluntarily entered has not been preserved for appellate review as a matter of law since he did not move to withdraw the plea or to vacate the judgment of conviction (see, People v Butler, 200 A.D.2d 515, lv denied 83 N.Y.2d 850), and we decline to review it in the interest of justice. Were we to reach this contention, we would affirm. Defendant was charged under a single indictment with two counts of robbery in the first degree and one count of attempted first degree robbery. Defendant is correct in arguing that prior to pleading guilty he was misadvised by the court that the maximum period for the attempted first degree robbery count could be 12 1/2 to 25 years. Nevertheless, we reject defendant's claim that he would have gone to trial had he been told that he could be sentenced to as much as 32 1/2 to 65 years instead of 37 1/2 to 75 years, especially since his desire to plead guilty in exchange for the negotiated sentence of 8 to 16 years was clearly established on the record prior to the court's remark (see, People v Durran, 210 A.D.2d 34, lv denied 84 N.Y.2d 1031). The record is clear that defendant's plea was knowingly, voluntarily and intelligently made.
Concur — Sullivan, J.P., Rubin, Asch, Nardelli and Tom, JJ.