To the extent that the defendant contends that he received ineffective assistance of counsel with respect to the negotiation of the plea, the record reveals that he received an advantageous plea, and nothing in the record casts doubt upon the apparent effectiveness of counsel (seePeople v. Henry, 95 N.Y.2d 563, 566, 721 N.Y.S.2d 577, 744 N.E.2d 112 ; People v. Yarborough, 83 A.D.3d 875, 875, 920 N.Y.S.2d 681 ).The defendant's remaining contentions were not raised in his motion to withdraw his plea of guilty and, therefore, are not preserved for appellate review (seePeople v. Stutzman, 158 A.D.3d 1294, 1295, 71 N.Y.S.3d 784 ; People v. Miller, 1 A.D.3d 613, 613, 767 N.Y.S.2d 663 ). In any event, there is no merit to the defendant's contention that the allocution as to the burglary count was factually deficient, or that the Supreme Court failed to conduct an adequate inquiry into a potential justification defense to the count of murder in the second degree (seePeople v. Lopez, 71 N.Y.2d 662, 667, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Sierra, 256 A.D.2d 598, 599, 683 N.Y.S.2d 563 ; cf.People v. Riley, 91 A.D.2d 671, 457 N.Y.S.2d 122 ).
WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, PETER B. SKELOS, and MARK C. DILLON, JJ.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 24, 2003 (People v. Miller, 1 AD3d 613), affirming a judgment of the Supreme Court, Suffolk County, rendered August 7, 2000. ORDERED that the application is denied.
Ordered that the order is affirmed. To the extent that the defendant claims that the sentence imposed was excessive, the defendant is procedurally barred from raising this claim, as it was previously raised and determined on the defendant's direct appeal from the judgment of conviction ( see People v Miller, 1 AD3d 613, 614), and, since the time of that determination, there has been no retroactively effective change in the law controlling the issue ( see CPL 440.20). The defendant contends that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and that it violated his right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The defendant's contentions are based on the fact that, while he received an aggregate sentence of 20 years imprisonment, one of his codefendants received a determinate term of seven years imprisonment, and another was acquitted at trial.
PRESENT: RUDOLPH, P.J., TANENBAUM and MOLIA, JJ. Because the sentences of probation were part of defendant's negotiated plea agreement, he cannot now complain that the sentences were excessive and that he should, instead, have been sentenced to a conditional discharge (People v Domin , 13 AD3d 391, 392; People v Miller , 1 AD3d 613, 614; People v Kazepis, 101 AD2d 816, 817). Moreover, there is no indication that the court below relied on any "materially untrue assumptions or misinformation" in imposing sentences of probation (People v Metellus , 46 AD3d 578, 579, citing People v Naranjo, 89 NY2d 1047, 1049) nor did defendant below, when the opportunity presented, specify any deficiencies or inaccuracies in the presentence report, aside from a general reference to the report's account of defendant's "physical status" (e.g. People v Poggiali , 19 Misc 3d 134 [A], 2008 NY Slip Op 50694[U] [App Term, 9th 10th Jud Dists 2008] [noting that although the probation report "was provided to defense counsel prior to (the imposition of) sentence . . . defendant did not challenge either the factual information set forth in the report or the (sentencing) recommendation"]).
Ordered that the judgment is affirmed. The defendant's contention that his plea should be vacated because he was not adequately advised that he would be subject to a term of postrelease supervision ( see Penal Law § 70.45) is unpreserved for appellate review ( see e.g. People v. Russell, 7 AD3d 818; People v. Miller, 1 AD3d 613; People v. Melio, 304 AD2d 247; cf. People v. Lindsey, 302 AD2d 128, 131 n. 2 [2003]), and, in any event, is without merit ( see e.g. People v. Wronka, 6 AD3d 735; People v. Cruz, 305 AD2d 424). Moreover, the failure of the County Court to specify the term of postrelease supervision at the time of sentence does not warrant vacatur of the plea ( see e.g. People v. Boyce, 12 AD3d 728; Matter of Deal v. Goord, 8 AD3d 769; People v. Hollenbach, 307 AD2d 776; People v. Crump, 302 AD2d 901; People v. Thweatt, 300 AD2d 1100; People v. White, 296 AD2d 867).
The defendant contends that his plea was not knowingly, intelligently, and voluntarily entered because he was not meaningfully informed about the mandatory period of post-release supervision he would face following the completion of his determinate sentence. However, this claim is unpreserved for appellate review because the defendant did not move to withdraw his plea before sentencing or vacate the judgment of conviction ( see People v. Concepcion, 2 A.D.3d 873; People v. Miller, 1 A.D.3d 613, lv denied 1 N.Y.3d 598; People v. Mapp, 308 A.D.2d 462, lv denied 1 N.Y.3d 575; People v. Cruz, 305 A.D.2d 424). In any event, the record establishes that the defendant was adequately advised that he would be subject to a period of post-release supervision as a consequence of his plea ( see People v. Cruz, supra).
Nevertheless, since the court did not specify a shorter period, the period of postrelease supervision on a conviction of attempted assault in the first degree (a class C violent felony offense), a term of five years, was imposed and must be served (Penal Law § 70.45 [2]; People v Stanley, 309 AD2d 1254 [2003]; People v Minter, 306 AD2d 801 [2003], lv denied 100 NY2d 585 [2003]; People v Thweatt, supra). The trial court's silence on this issue is not grounds for relief. A failure to mention the term of postrelease supervision might be relevant if petitioner had challenged the voluntariness of his plea, or moved to vacate his plea, or moved to withdraw his plea before sentence was imposed, or moved to vacate his judgment of conviction (People v Miller, 1 AD3d 613 [2003], lv denied 1 N.Y.3d 598 [2004]; People v Bell, supra; People v Crump, supra; People v Curry, 301 AD2d 658 [2003], lv denied 99 NY2d 653 [2003]). But that is not the case.
Nevertheless, since the court did not specify a shorter period, the period of postrelease supervision on a conviction of attempted assault in the first degree (a class C violent felony offense), a term of five years, was imposed and must be served (Penal Law § 70.45; People v. Stanley, 309 AD2d 1254; People v. Minter, 306 AD2d 801, lv denied 100 NY2d 585; People v. Thweatt, supra). The trial court's silence on this issue is not grounds for relief. A failure to mention the term of postrelease supervision might be relevant if petitioner had challenged the voluntariness of his plea, or moved to vacate his plea, or moved to withdraw his plea before sentence was imposed, or moved to vacate his judgment of conviction ( People v. Miller, 1 AD3d 613, lv denied 1 N.Y.3d 598; People v. Bell, supra; People v. Crump, supra; People v. Curry, 301 AD2d 658, lv denied 99 NY2d 653). But that is not the case.