Opinion
May 10, 2000.
Appeal from Judgment of Erie County Court, DiTullio, J. — Criminal Possession Controlled Substance, 3rd Degree.
Judgment unanimously affirmed.
PRESENT: GREEN, J. P., HAYES, WISNER AND HURLBUTT, JJ.
Memorandum:
The contention of defendant that his first attorney was ineffective does not survive the waiver of his right to appeal ( see, People v. Petgen, 55 N.Y.2d 529, 534-535, rearg denied 57 N.Y.2d 674; People v. Ferguson, 192 A.D.2d 800, lv denied 82 N.Y.2d 717). The alleged instances of ineffectiveness on the part of defendant's second attorney, raised in the pro se supplemental brief, are based upon matters outside the record and thus are not subject to review on direct appeal ( see, People v. Ford, 184 A.D.2d 1013, lv denied 80 N.Y.2d 929).
The contention that defendant was coerced into pleading guilty survives his waiver of the right to appeal ( see, People v. DeJesus, 248 A.D.2d 1023, lv denied 92 N.Y.2d 879). However, by failing to move to withdraw the guilty plea or to vacate the judgment of conviction, defendant has failed to preserve that contention for our review ( see, People v. Jeffrey, 239 A.D.2d 953, lv denied 90 N.Y.2d 894; People v. Martin, 239 A.D.2d 800, 801, lv denied 90 N.Y.2d 941), and this case does not fall within the narrow exception to the preservation requirement ( see, People v. Lopez, 71 N.Y.2d 662, 666).