PEOPLE v. PITTMAN (2005)

Appeal from a judgment of the County Court of Greene County (Lalor, J.), rendered August 8, 2003, which revoked defendant's probation and imposed a sentence of imprisonment.

Defendant pleaded guilty to attempted burglary in the second degree and received the agreed-upon sentence of time served and five years probation.   Two months later, defendant was charged with violating the terms of his probation by using drugs and alcohol, being arrested and failing to follow through with recommended treatment.   Defendant pleaded guilty to two of six counts of the violation petition.   In exchange, the People agreed to recommend a sentence of five years in prison and three years of postrelease supervision, and to decline prosecution of an unrelated pending felony charge and two violations.   After County Court sentenced him according to the plea agreement, defendant appealed.¹

Defendant failed to preserve his claim that he was coerced into pleading guilty to the violation of probation.   A motion to withdraw his plea or vacate the judgment of conviction was necessary to preserve that claim (see People v. Hughes, 3 A.D.3d 736, 736, 770 N.Y.S.2d 666 [2004];  People v. Banks, 305 A.D.2d 812, 812, 761 N.Y.S.2d 114 [2003], lv. denied 100 N.Y.2d 578, 764 N.Y.S.2d 388, 796 N.E.2d 480 [2003] ).   Defendant's remaining contentions are either unpreserved or lack merit.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although defendant's brief addresses arguments related to the underlying attempted burglary conviction, those issues are not properly before us because he failed to file a notice of appeal from that judgment of conviction (see CPL 450.30[3];  People v. Dabbs, 178 A.D.2d 848, 849, 577 N.Y.S.2d 721 [1991], lv. denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808 [1992] ).

KANE, J.

MERCURE, J.P., CREW III, MUGGLIN and LAHTINEN, JJ., concur.