Opinion
May 27, 1994
Appeal from the Supreme Court, Onondaga County, Gorman, J.
Present — Pine, J.P., Balio, Callahan, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the first degree. The record establishes that, as part of his plea agreement, defendant made a knowing, intelligent and voluntary waiver of his right to appeal (see, People v. Callahan, 80 N.Y.2d 273; People v. Moissett, 76 N.Y.2d 909; People v. Saunders, 190 A.D.2d 1092, lv denied 81 N.Y.2d 1019). Moreover, defendant has raised no "categories of appellate claims" that survive such waiver (People v. Callahan, supra, at 280; see, People v Saunders, supra). The waiver forecloses review of the contention that the suppression court erred in precluding defendant from litigating the issue of probable cause (see, People v. Gardner, 167 A.D.2d 937; People v. Roberts, 152 A.D.2d 678, 679, lv denied 74 N.Y.2d 851). The issues raised in defendant's pro se supplemental brief are similarly foreclosed from appellate review. In any event, defendant's contention that the court failed to honor the terms of the plea agreement is based upon an alleged off-the-record promise. "A defendant will not be heard to challenge his guilty plea when the minutes of the plea are unequivocal and refute any contention of an off-the-record promise" (People v. Frederick, 45 N.Y.2d 520, 526; see, People v Selikoff, 35 N.Y.2d 227, cert denied 419 U.S. 1122). The contention that defendant was deprived of his constitutional right to be present at his Sandoval hearing was the subject of a CPL 440.10 motion that is not part of the record on this appeal.