Opinion
November 16, 1998
Appeal from the County Court, Suffolk County (Cotter, J.).
Ordered that the judgment is modified, on the law, by providing that the term of imprisonment imposed for murder in the second degree under count three of the indictment (felony murder) shall run concurrently with the terms of imprisonment imposed on the convictions of robbery in the first degree; as so modified, the judgment is affirmed.
The defendant's challenge to the factual sufficiency of his plea allocution is unpreserved for appellate review as he failed to make a motion to withdraw the plea pursuant to CPL 220.60 (3) or a motion to vacate the judgment of conviction under CPL 440.10 ( see, People v. Lopez, 71 N.Y.2d 662, 665-666; People v. Claudio, 64 N.Y.2d 858). In any event, the record demonstrates that the defendant knowingly and voluntarily entered his guilty plea, and there is no suggestion that the plea was improvident or baseless ( see, People v. Menard, 187 A.D.2d 458; People v. DeGraff, 186 A.D.2d 752).
The defendant's contention that his guilty plea should be vacated due to ineffective assistance of counsel is also unpreserved or appellate review ( see, People v. Lu Yang Tong, 238 A.D.2d 607; People v. Sierre, 173 A.D.2d 211). In any event, upon review of the record, we find that the defendant was provided with meaningful representation ( see, People v. Flores, 84 N.Y.2d 184, 186-187; People v. Baldi, 54 N.Y.2d 137, 147).
As the People correctly concede, the defendant's sentence for felony murder must be modified to run concurrently with the sentences imposed on the convictions of robbery in the first degree, as the robbery constituted the underlying felony for the felony murder conviction, and was a material element of that offense ( see, Penal Law § 70.25; People v. Laureano, 87 N.Y.2d 640, 643; People v. Marro, 225 A.D.2d 796; People v. Flores, 207 A.D.2d 562). There is no merit to the defendant's contention that the sentences imposed for the other murder counts, which were based upon intentional homicide and depraved indifference, must run concurrently with the sentences imposed for the robbery counts.
The defendant's sentence was not excessive in light of his lengthy criminal record and the brutally violent nature of the crime ( see, People v. Suitte, 90 A.D.2d 80; People v. Craig, 194 A.D.2d 687; People v. Barrales, 221 A.D.2d 348).
Bracken, J. P., Ritter, Santucci and Altman, JJ., concur.