People v. Skye

Oct 1, 2002
Versions:298 A.D.2d 889
747 N.Y.S.2d 837
2002 N.Y. App. Div. LEXIS 9093

—Appeal from a judgment of Cattaraugus County Court (Himelein, J.), entered January 29, 2001, convicting defendant upon his plea of guilty of attempted burglary in the second degree.

*890It 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 [2]). He was sentenced as a second felony offender to a determinate term of incarceration of seven years, to which is added a period of postrelease supervision pursuant to Penal Law § 70.45. Defendant contends that his plea is invalid because County Court failed to advise him at the time of the plea that he would be subject to a mandatory period of postrelease supervision. That contention is not preserved for our review (see People v White, 296 AD2d 867; People v Shumway, 295 AD2d 916; People v Minter, 295 AD2d 927; People v Roddy, 295 AD2d 965). The further contention of defendant that he was denied effective assistance of counsel based on defense counsel’s alleged failure to advise him of the mandatory period of postrelease supervision involves matters outside the record on appeal and therefore must be pursued by way of a CPL 440.10 motion (see People v Booker, 280 AD2d 785, 786, lv denied 96 NY2d 916; see also People v Robertson, 286 AD2d 863, lv denied 97 NY2d 760; People v Snitzel, 270 AD2d 836, 836-837, lv denied 95 NY2d 804). Contrary to the further contention of defendant, he is properly subject to five years of postrelease supervision based on his status as a second felony offender (see Penal Law § 70.45 [2]; People v Robinson, 297 AD2d 827; cf. People v Goss, 286 AD2d 180, 183). The challenge of defendant to the severity of the sentence does not survive his waiver of the right to appeal (see People v Lococo, 92 NY2d 825, 827; People v Hidalgo, 91 NY2d 733, 737) and in any event is without merit. Present— Wisner, J.P., Hurlbutt, Scudder and Kehoe, JJ.