People v. Marshall , 500 N.Y.S.2d 68 ( 1986 )

— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered August 22, 1983, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed, and case remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (5).

By not moving in the court of first instance to withdraw his plea or vacate his conviction, the.defendant failed to preserve for appellate review the issue of the sufficiency of his plea allocution (see, People v Pellegrino, 60 NY2d 636).

We note that the defendant should have been taken into custody in light of the order of this court, dated April 24, 1985, which denied his motion for an extension of the stay of execution of the sentence pending the determination of the instant appeal (see, CPL 460.50 [4]). Lazer, J. P., Rubin, Lawrence and Kooper, JJ., concur.