MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law 125.20). We reject the contention of defendant that he was deprived of effective assistance of counsel when defense counsel took a position adverse to that of defendant with respect to his pro se oral motion to withdraw his guilty plea. "The record establishes that defense counsel's comments did not affect [County] Court's determination of the pro se motion" ( People v. Cook, 295 A.D.2d 888, 888, lv denied 99 N.Y.2d 534; see People v. Nawabi, 265 A.D.2d 156, lv denied 94 N.Y.2d 865). Rather, the court denied the motion "solely on the basis of its own recollection of the record" ( People v. Burgos, 298 A.D.2d 190, 190, lv denied 99 N.Y.2d 580). We agree with defendant that the record does not establish that his waiver of the right to appeal was knowing, voluntary, and intelligent ( see People v. Boustani, 300 A.D.2d 313, lv denied 99 N.Y.2d 612, 618; People v. Brown, 296 A.D.2d 860, lv denied 98 N.Y.2d 767), and thus that waiver does not encompass his contention concerning the severity of the sentence. Nevertheless, we reject defendant's contention that the sentence is unduly harsh or severe.