Opinion
March 29, 2000.
Appeal from Judgment of Erie County Court, DiTullio, J. — Attempted Robbery, 1st Degree.
PRESENT: PIGOTT, JR., P. J., WISNER, SCUDDER AND LAWTON, JJ.
Judgment unanimously affirmed. Memorandum: The record establishes that defendant voluntarily, knowingly and intelligently waived his right to appeal ( see, People v. Moissett, 76 N.Y.2d 909; People v. Saunders, 190 A.D.2d 1092, 1093, lv denied 81 N.Y.2d 1019). That waiver precludes our review of the denial of defendant's suppression motion ( see, People v. Kemp, 94 N.Y.2d 831; People v. Vaccaro, 206 A.D.2d 952, 953, lv denied 84 N.Y.2d 940). Defendant concedes that his initial sentence was illegal but contends that County Court erred in resentencing him without affording him the opportunity to withdraw his guilty plea. Defendant was initially sentenced to a determinate term of imprisonment of seven years to run concurrently with an undischarged term of imprisonment and, upon resentencing, the court directed that the seven-year term run consecutive to the undischarged term. By failing to object to his resentencing or to move at resentencing to withdraw his guilty plea, defendant failed to preserve that contention for our review ( see, CPL 470.05; People v. Ellis, 162 A.D.2d 701, lv denied 76 N.Y.2d 892; see also, People Breckner, 215 A.D.2d 229, lv denied 86 N.Y.2d 791), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see, CPL 470.15 [a]).