Opinion
KA 01-01318
November 15, 2002.
Appeal from a judgment of Onondaga County Court (Fahey, J.), entered August 7, 2000, convicting defendant upon his plea of guilty of manslaughter in the first degree.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (GERALD T. BARTH OF COUNSEL), FOR DEFENDANT-APPELLANT.
RALPH E. KAZMIRSKI, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, KEHOE, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20), defendant contends that the plea was not voluntarily, knowingly and intelligently entered because County Court failed to inform him at the time of his plea that he would be subject to a period of postrelease supervision pursuant to Penal Law § 70.45(2) ( see People v. Benton, 298 A.D.2d 902 [Oct. 1, 2002]). By failing to move to withdraw the plea of guilty or to vacate the judgment of conviction, defendant failed to preserve that contention for our review ( see People v. Shumway, 295 A.D.2d 916; People v. Minter, 295 A.D.2d 927 , lv denied 98 N.Y.2d 712). The further contention of defendant that he was denied effective assistance of counsel based on defense counsel's alleged failure to advise him of the mandatory period of postrelease supervision involves matters outside the record and therefore must be pursued by way of a CPL 440.10 motion ( see People v. Booker, 280 A.D.2d 785, 786, lv denied 96 N.Y.2d 916; see also People v. Robertson, 286 A.D.2d 863, lv denied 97 N.Y.2d 760; People v. Snitzel, 270 A.D.2d 836, 836-837, lv denied 95 N.Y.2d 804).
Contrary to the contention of defendant in his pro se supplemental brief, his knowing, voluntary and intelligent waiver of the right to appeal encompasses his contention that the court erred in denying his suppression motion ( see People v. Kemp, 94 N.Y.2d 831, 833). In any event, that contention is without merit. We have reviewed the remaining contentions raised by defendant in the main brief and pro se supplemental brief and conclude that they also lack merit.