PEOPLE v. HERNANDEZ

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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Angel HERNANDEZ, appellant.

Decided: March 29, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. M. Sue Wycoff, New York, N.Y. (Todd A. Landau of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie and Joyce Slevin of counsel;  Robert Ho on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Lebowitz, J.), rendered July 23, 1997, convicting him of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant's contention that his plea was not knowingly, voluntarily, and intelligently made is not properly before this court, as he never sought to withdraw his plea, pursuant to CPL 220.60(3), nor did he move to vacate his judgment of conviction pursuant to CPL 440.10 (see, People v. Toxey, 86 N.Y.2d 725, 631 N.Y.S.2d 119, 655 N.E.2d 160;  People v. Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5).   Furthermore, contrary to the defendant's contention, upon accepting the defendant's plea and placing him on probation, the court was not required to specify the enhanced sentence that would be imposed upon a violation of the probation (see, People v. Ogtong, 80 N.Y.2d 702, 711, 714, 594 N.Y.S.2d 683, 610 N.E.2d 356).

 The defendant's contention that his sentence was excessive is beyond the scope of appellate review, as there is no merit to his claim with regard to the infirmities of his plea and the accompanying waiver of his right to appeal all aspects of his conviction and sentencing (see, People v. Hidalgo, 91 N.Y.2d 733, 736, 675 N.Y.S.2d 327, 698 N.E.2d 46;  People v. Seaberg, 74 N.Y.2d 1, 543 N.Y.S.2d 968, 541 N.E.2d 1022;  People v. Kazepis, 101 A.D.2d 816, 475 N.Y.S.2d 351).   In any event, since the defendant did not move to withdraw his plea pursuant to CPL 440.10 and 440.20, the issue of the excessiveness of his sentence is unpreserved for appellate review (see, CPL 470.05[2];  People v. Ellis, 162 A.D.2d 701, 558 N.Y.S.2d 82;  People v. Moore, 155 A.D.2d 696, 548 N.Y.S.2d 262).

MEMORANDUM BY THE COURT.

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