People v. Hodge

226 A.D.2d 1124, 642 N.Y.S.2d 832, 1996 N.Y. App. Div. LEXIS 5654

Opinion

Judgment unanimously affirmed. Memorandum: Supreme Court did not abuse its discretion in denying, without a hearing, the motion of defendant to withdraw his guilty plea prior to sentencing (see, CPL 220.60 [3]; People v Tinsley, 35 NY2d 926, 927; People v Boothman, 217 AD2d 1007). The contention that trial counsel failed to advise defendant that his sentence would run concurrently with a sentence he was serving on a prior conviction is based upon matters outside the record. Therefore, defendant is relegated to a motion for postjudgment relief (see, CPL 440.10; People v Larrabee, 201 AD2d 924, lv denied 83 NY2d 855; see also, People v Ramos, 63 NY2d 640). Finally, from our review of the record, we conclude that defendant voluntarily, knowingly and intelligently waived his right to appeal (see, People v Moissett, 76 NY2d 909; People v Underwood, 210 AD2d 994). (Appeal from Judgment of Supreme Court, Erie County, Wolfgang, J.—Attempted Criminal Possession Forged Instrument, 2nd Degree.) Present—Green, J. P., Fallon, Wesley, Davis and Boehm, JJ.