Opinion
May 25, 1995
Appeal from the Supreme Court, New York (Herbert Alderberg, J.).
Defendant's contention that his plea was not knowing, voluntary or intelligent has not been preserved for appellate review, as a matter of law, since he did not move to withdraw the plea (CPL 220.60), or to vacate the judgment of conviction (CPL 440.10; see, People v Butler, 200 A.D.2d 515, lv denied 83 N.Y.2d 850), and we decline to review it in the interest of justice. Were we to review it, we would affirm. Part of the express plea bargain was that defendant would testify truthfully at the trial of his co-defendant and that his failure to do so would result in the imposition of the maximum allowable sentence. Defendant's refusal to do so violated the terms of the sentence promise and the court acted properly in imposing a greater sentence without affording him an opportunity to withdraw his plea (see, People v Fowler, 167 A.D.2d 154, 155, lv denied 77 N.Y.2d 838). Nor was there any abuse of sentencing discretion in adjudicating defendant a persistent violent felony offender since he intentionally deceived the court by using an alias to avoid discovery of prior offenses and failed to disclose his true status during plea negotiations (People v Barnes, 160 A.D.2d 342). We note defendant's plea was knowing, voluntary and intelligent.
Concur — Sullivan, J.P., Rosenberger, Wallach, Nardelli and Williams, JJ.