Opinion
KA 02-01135
June 13, 2003.
Appeal from a judgment of Steuben County Court (Bradstreet, J.), entered March 11, 2002, convicting defendant upon his plea of guilty of attempted burglary in the second degree.
SALVATORE C. ADAMO, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN C. TUNNEY, DISTRICT ATTORNEY, BATH, FOR PLAINTIFF-RESPONDENT.
PRESENT: PINE, J.P., HURLBUTT, SCUDDER, KEHOE, AND HAYES, 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 burglary in the second degree (Penal Law 110.00, 140.25). Defendant contends that his plea was not knowingly, voluntarily, and intelligently 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 CPL 470.05; People v. Perillo, 300 A.D.2d 1097; People v. Kazmirski, 299 A.D.2d 826, lv denied 99 N.Y.2d 583). Defendant's motion to set aside the postrelease supervision component of 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 ( see People v. Larweth, 303 A.D.2d 1029 [Mar. 21, 2003]). We decline to exercise our power to review defendant's contention as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). The further contention of defendant that he was denied effective assistance of counsel because defense counsel allegedly failed 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" ( Kazmirski, 299 A.D.2d at 827). Finally, defendant's sentence is legal ( see People v Crump, 302 A.D.2d 901) and is neither unduly harsh nor severe.