People v. Poler

Judgment unanimously affirmed. Memorandum: Defendant’s motion to withdraw his guilty *906plea, made long after sentencing, must be considered as a motion to set aside the conviction pursuant to CPL 440.10 and it is not appealable as of right. Thus, we do not consider defendant’s contention that the court’s denial of his motion was an abuse of discretion.

Defendant’s contention that the Judge’s communication with the victim was ex parte and without defendant’s consent is not supported by the record. Moreover, defendant has failed to raise this issue for our review as a matter of law by objecting either at sentencing or at resentencing or by moving to set aside the sentence. (Appeal from judgment of Cattaraugus County Court, Kelly, J. — attempted sodomy, first degree.) Present — Dillon, P. J., Boomer, Green, Lawton and Davis, JJ.