Opinion
KA 01-02190
March 21, 2003.
Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered August 6, 2001, convicting defendant upon his plea of guilty of attempted assault in the first degree.
DAVID M. PARKS, ITHACA, For Defendant-appellant.
EDWARD M. SHARKEY, District Attorney, LITTLE VALLEY, For Plaintiff-respondent.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, KEHOE, 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:
Defendant appeals from a judgment convicting him upon his plea of guilty of attempted assault in the first degree (Penal Law § 110.00, 120.10). Defendant contends that his plea was not knowingly and voluntarily entered because County Court failed to advise him prior to entry of the plea that he would be subject to a period of postrelease supervision. Because defendant failed to move to withdraw his plea or to vacate the judgment of conviction on that ground, he has not preserved his contention for our review (see People v. Perillo, 300 A.D.2d 1097 [Dec. 30, 2002]; People v. Moore [Demetrius], 300 A.D.2d 1085 [Dec. 30, 2002]; People v. Kazmirski, 299 A.D.2d 826). Defendant's motion to set aside the sentence pursuant to CPL 440.20 did not preserve that contention for our review inasmuch as the motion addressed only the validity of the sentence imposed. We further conclude that the valid waiver by defendant of the right to appeal encompasses his contentions concerning the factual sufficiency of the plea allocution (see People v. Loewel, 302 A.D.2d 933 [Feb. 7, 2003]; People v. Dewitt, 295 A.D.2d 937, lv denied 98 N.Y.2d 709, 767; People v. Zimmerman, 219 A.D.2d 848, lv denied 88 N.Y.2d 856) and the severity of the sentence (see People v. Lococo, 92 N.Y.2d 825, 827; People v. Bunn, 302 A.D.2d 924 [Feb. 7, 2003]; Dewitt, 295 A.D.2d at 937-938; Zimmerman, 219 A.D.2d at 848). Finally, the court substantially complied with the requirements of CPL 400.21 in sentencing defendant as a predicate felony offender (see People v. Ford, 157 A.D.2d 992, lv denied 75 N.Y.2d 919; People v. Graham, 67 A.D.2d 172, 179; cf. People v. Snyder, 105 A.D.2d 553).