The People of the State of New York, Respondent, v. John A. Harrison, Jr., Appellant

The People of the State of New York, Respondent, v John A. Harrison, Jr., Appellant. [771 NYS2d 448] [MAJORITY] from a judgment of the Ontario County Court (Craig J. Doran, J.), rendered June 7, 2002. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In view of the contentions raised by defendant on appeal, we need not address his contention that his waiver of the right to appeal is ineffective. The contention that defendant was coerced into pleading guilty survives the waiver of the right to appeal, but defendant did not move to withdraw the guilty plea or to vacate the judgment of conviction and thus failed to preserve that contention for our review (see People v Williams, 272 AD2d 986 [2000]). County Court expressly “left open the appealability of the sentence” despite the waiver of the right to appeal (People v Shughart, 247 AD2d 826, 826 [1998]). We conclude, however, that the sentence is not unduly harsh or severe, and that defendant’s constitutional challenge to the sentencing scheme is lacking in merit (see People v Thompson, 83 NY2d 477 [1994]). Present—Pigott, Jr., PJ., Green, Pine, Gorski and Lawton, JJ.