People v. McElory

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of rape in the first degree (Penal Law § 130.35 [1]). Defendant contends that County Court erred in failing to vacate his guilty plea sua sponte based on defendant’s inquiry at sentencing concerning the difference between forcible rape and consensual sexual intercourse. Because defendant neither moved to withdraw his plea under CPL 220.60 (3) nor moved to vacate the judgment of conviction under CPL 440.10, he has failed to preserve his contention for our review (see, People v Lopez, 71 NY2d 662, 665). In any event, defendant’s contention lacks merit (see, People v Matthews, 71 AD2d 864). (Appeal from Judgment of Jefferson County Court, Clary, J. — Rape, 1st Degree.) Present — Pine, J. P., Hayes, Wisner and Boehm, JJ.