Opinion
KA 01-00367
October 1, 2002.
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.
THE LAW OFFICE OF MICHAEL R. CARDINALE, CICERO (MICHAEL R. CARDINALE OF COUNSEL), FOR DEFENDANT-APPELLANT.
EDWARD M. SHARKEY, DISTRICT ATTORNEY, LITTLE VALLEY, FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, AND KEHOE, 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). 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 A.D.2d 867; People v. Shumway, 295 A.D.2d 916; People v. Minter, 295 A.D.2d 927; People v. Roddy, 295 A.D.2d 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 A.D.2d 785, 786, lv. denied 96 N.Y.2d 916; see also People v. Robertson, 286 A.D.2d 863, lv. denied 97 N.Y.2d 760; People v Snitzel, 270 A.D.2d 836, 836-837, lv. denied 95 N.Y.2d 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; People v. Robinson, 297 A.D.2d 827 [Sept. 30, 2002]; cf. People v. Goss, 286 A.D.2d 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 N.Y.2d 825, 827; People v. Hidalgo, 91 N.Y.2d 733, 737) and in any event is without merit.