Robert S. Dean, Center for Appellate Litigation, New York City (Claudia B. Flores of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York City (John T. Hughes of counsel), for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant's claims regarding the voluntariness of his plea lack merit, and the Appellate Division properly affirmed the trial court's denial of defendant's motion to withdraw his guilty plea.
Additionally, defendant was sentenced as a first felony offender to a lawful prison term, 2 1/3 to 7 years, for such an offender. Defendant's new argument on this appeal—contrary to his assertion to the plea court—that his status as a first felony offender is erroneous; that, thus, his sentence is illegal as a matter of law; and that he must be resentenced as a second felony offender, is not established on this record. Accordingly, his request for resentencing, made for the first time on this direct appeal, fails, without prejudice to defendant, if he be so advised, moving pursuant to CPL 440.20 for re-sentencing.
Chief Judge DiFIORE and Judges PIGOTT, RIVERA, ABDUS–SALAAM, STEIN, FAHEY and GARCIA concur.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11 ), order affirmed, in a memorandum.