People v. Nunez

177 A.D.2d 656

Opinion

Appeal by the defendant from a judgment of the County Court, Nassau County (Goodman, J.), rendered November 27, 1989, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Upon our review of the record, we find that, contrary to the People’s contention, the defendant did not effectively waive his right to appeal (see, People v Seaberg, 74 NY2d 1). Nonetheless, we find no basis to vacate the plea.

The defendant’s present challenge to the factual sufficiency of the plea allocution is not preserved for appellate review because he failed to move to withdraw his plea prior to the imposition of sentence (see, People v Lopez, 71 NY2d 662; People v Pellegrino, 60 NY2d 636) and, in any event, was precluded once he pleaded guilty to a lesser offense than that charged in the indictment (see, People v Pelchat, 62 NY2d 97; People v Clairborne, 29 NY2d 950). His further claim of ineffective assistance of counsel is based on matters outside of the record and is therefore not reviewable on direct appeal. Thompson, J. P., Sullivan, Harwood, Miller and O’Brien, JJ., concur.