Opinion
June 10, 1998
Appeal from Judgment of Onondaga County Court, Burke, J. — Criminal Possession Weapon, 3rd Degree.
Present — Pine, J. P., Lawton, Wisner, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: County Court did not abuse its discretion in denying the motion of defendant to withdraw his guilty plea to criminal possession of a weapon in the third degree (Penal Law § 265.02 ), a violent felony. The record does not support the contention of defendant that he entered the plea based on misinformation that the promised sentence of a four-year definite term of incarceration would be concurrent with a sentence he was serving on a prior conviction.
Defendant further contends that he was denied effective assistance of counsel because defense counsel took a position adverse to him and became a witness against him when defendant moved to withdraw his guilty plea and because defense counsel did not accurately inform him that, by pleading guilty to a violent felony, the sentence imposed would run consecutive to a sentence he was serving on a prior conviction. The record does not support either contention (cf., People v. Burton, 251 A.D.2d 1020 [decided herewith]). To the extent that the contention that defense counsel misinformed defendant with respect to his sentence is based on matters outside the record, that contention can only be considered in a motion for postjudgment relief (see, CPL 440.10 [h]; People v. Hodge, 226 A.D.2d 1124, lv denied 88 N.Y.2d 986; People v. Belair, 226 A.D.2d 1105, 1106).
Upon our review of the record, we conclude that defendant's plea was knowingly, intelligently and voluntarily entered but that the colloquy concerning the waiver of the right to appeal is insufficient to establish a knowing and voluntary waiver. (see generally, People v. Callahan, 80 N.Y.2d 273, 280). Thus, although review of defendant's contention concerning the sentence is not thereby foreclosed, we nonetheless conclude that the sentence is not unduly harsh or severe.