Opinion
April 19, 1996
Appeal from the Herkimer County Court, Kirk, J.
Present — Pine, J.P., Wesley, Balio, Davis and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant contends that County Court failed to honor its sentencing promise and, therefore, erred in denying his motion to withdraw his plea. We disagree. The record does not support the contention that defendant was promised that his sentence would run concurrently with a sentence of shock incarceration that he was already serving, nor does it support the contention that the court unconditionally promised that defendant would receive credit for time served. The court specified that defendant would receive such credit, subject to the approval of the Department of Corrections. Defendant stated that he understood the proposed disposition and that no other promises had been made to him ( cf., People v. Ramos, 63 N.Y.2d 640; People v. Christian, 158 A.D.2d 705).
The contention that trial counsel failed to advise defendant that he could not receive credit for time served cannot be reviewed because the record is silent on that issue; there must be "a factual record sufficient to permit appellate review" ( People v. Kinchen, 60 N.Y.2d 772, 774). Therefore, defendant is relegated to a motion for postjudgment relief ( see, CPL 440.10; People v. Larrabee, 201 A.D.2d 924, lv denied 83 N.Y.2d 855; see also, People v. Ramos, supra, at 642-643).