Opinion
June 5, 1992
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Denman, P.J., Boomer, Pine, Balio and Fallon, JJ.
Appeal unanimously dismissed. Memorandum: As a condition of a negotiated plea bargain, defendant waived his right to appeal (see, People v. Moissett, 76 N.Y.2d 909; People v. Seaberg, 74 N.Y.2d 1).
Inasmuch as the record demonstrates that the waiver was knowingly, intelligently and voluntarily made, defendant's appeal is dismissed (see, People v. Ford, 176 A.D.2d 1224; People v Johnson, 166 A.D.2d 899, lv denied 77 N.Y.2d 840). Defendant argues for the first time on appeal that his plea of guilty was not voluntarily and knowingly entered because he was taking anti-depression medication at the time. By failing to make a postplea motion before Supreme Court to withdraw or vacate, defendant has failed to preserve this issue for our review (see, People v. Bell, 47 N.Y.2d 839; People v. Bouges, 129 A.D.2d 967; see also, People v. Claudio, 64 N.Y.2d 858; cf., People v. Gomez, 174 A.D.2d 949, lv denied 79 N.Y.2d 827; People v. Seger, 171 A.D.2d 892, lv dismissed 78 N.Y.2d 1081). The record as a whole establishes that defendant's guilty plea was knowingly, intelligently and voluntarily entered in the presence of and with the aid of counsel and after the court had fully apprised defendant of the consequences of his plea (see, People v Harris, 61 N.Y.2d 9; People v. Mercedes, 171 A.D.2d 1044, lv denied 77 N.Y.2d 998; People v. O'Keefe, 170 A.D.2d 1020, lv denied 77 N.Y.2d 965; People v. Gomez, 142 A.D.2d 649, lv dismissed 73 N.Y.2d 786). Because the record demonstrates that defendant had a rational and factual understanding of the proceedings, Supreme Court did not err in failing to make a further inquiry of the effect of the medication on defendant's mental condition (cf., People v. Hampton, 171 A.D.2d 1071). The sentence imposed was neither harsh nor excessive.