| People v Lando |
| 2009 NY Slip Op 03280 [61 AD3d 1389] |
| April 24, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Timothy E.Lando, Jr., Appellant. |
—[*1] Timothy E. Lando, Jr., defendant-appellant pro se. William J. Fitzpatrick, District Attorney, Syracuse (Matthew H. James of counsel), forrespondent.
Appeal from a judgment of the Onondaga County Court (Anthony F. Aloi, J.), renderedOctober 25, 2006. The judgment convicted defendant, upon his plea of guilty, of rape in the firstdegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofrape in the first degree (Penal Law § 130.35 [1]). Defendant failed to move to withdrawhis plea or to vacate the judgment of conviction and thus failed to preserve for our review hiscontention that his plea was coerced (see People v Russell, 55 AD3d 1314 [2008], lv denied 11NY3d 930 [2009]). In any event, that contention lacks merit. Although County Court impressedupon defendant the potential sentence to which he was exposed in the event of a convictionfollowing a trial, the decision whether to either plead guilty or to proceed to trial neverthelessremained with defendant (see People vHamilton, 45 AD3d 1396 [2007], lv denied 10 NY3d 765 [2008]). Thechallenges by defendant in his pro se supplemental brief with respect to the severity of thesentence and the court's suppression ruling are encompassed by his valid waiver of the right toappeal (see People v Lopez, 6NY3d 248, 256 [2006]; People v Kemp, 94 NY2d 831, 833 [1999]). Finally, the tworemaining contentions raised by defendant in his pro se supplemental brief are based oninformation outside the record on appeal and thus are properly raised by way of a motionpursuant to CPL article 440 (see Peoplev Barnes, 56 AD3d 1171, 1171-1172 [2008]). Present—Martoche, J.P., Smith,Centra, Fahey and Pine, JJ.