People v. Alexander , 682 N.Y.S.2d 357 ( 1998 )

—Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Posner, J.), dated July 17, 1997, which denied, without a hearing, his motion pursuant to CPL 440.10, to set aside a judgment of conviction of the same court, rendered December 3, 1992, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and sentencing him to an indeterminate term of imprisonment of one to three years.

Ordered that the order is affirmed.

The defendant waived his right to appeal and cannot use CPL 440.10 as a substitute for an appeal (see, People v Hill, 220 AD2d 905). In any event, he failed to present any evidence either of mitigating circumstances or that he was a minor participant in the crime. Therefore, he was not entitled to youthful offender treatment (see, People v Cuatle, 212 AD2d 625).

The defendant’s remaining contentions are without merit. Pizzuto, J. P., Joy, Goldstein and Luciano, JJ., concur.