People v. Nelson

104 A.D.2d 1055, 481 N.Y.S.2d 19, 1984 N.Y. App. Div. LEXIS 20498

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered January 12, 1983, convicting him of burglary in the first degree, robbery in the first degree (two counts), criminal use of a firearm in the first degree, burglary in the second degree (two counts), robbery in the second degree (four counts), criminal use of a firearm in the second degree, and unlawful imprisonment in the second degree (two counts), upon his plea of guilty, and imposing sentence.

Judgment affirmed.

We note that the issue raised by the defendant concerning his plea of guilty was not presented to the court of first instance by way of a motion to withdraw the plea or vacate the judgment. Accordingly, that issue has not been preserved for review (see People v Pellegrino, 60 NY2d 636) People v Willie, 101 AD2d 819; People v Thomas, 74 AD2d 317, affd 53 NY2d 338). In any event, were we to address the merits, we would affirm.

Regarding defendant’s sentence, which he claims is excessive, he pleaded guilty with the understanding that he would receive the sentence which was thereafter actually imposed. On this record, defendant has no basis to now complain that his sentence was excessive. Brown, J. P., Niehoff, Rubin and Eiber, JJ., concur.