Appeal from a judgment of the Seneca County Court (Dennis F. Bender, J.), rendered December 20, 2010. The judgment convicted defendant, upon his plea of guilty, of aggravated harassment of an employee by an inmate.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of aggravated harassment of an employee by an inmate (Penal Law § 240.32). As the People correctly concede, defendant’s purported waiver of the right to appeal is invalid (see People v Khan, 291 AD2d 898, 898-899 [2002]). By failing to move to withdraw the plea or to vacate the judgment of conviction, defendant failed to preserve for our review his contention that, based on his alleged mental illness, his guilty plea was not voluntarily, knowingly and intelligently entered (see People v Carpenter, 13 AD3d 1193, 1194 [2004], lv denied 4 NY3d 797 [2005]). This case does not fall within the
Insofar as defendant contends that he was denied effective assistance of counsel based on defense counsel’s failure to investigate his history of mental illness and potential defenses, that contention involves matters outside the record on appeal and therefore must be raised by way of a motion pursuant to CPL article 440 (see People v Dizak, 93 AD3d 1182, 1185 [2012], lv denied 19 NY3d 972 [2012], reconsideration denied 20 NY3d 932 [2012]). Finally, we reject defendant’s further contention that he was denied effective assistance of counsel because defense counsel failed to move to withdraw defendant’s plea based on information regarding defendant’s history of mental illness contained in the presentence report. There is no basis upon which to conclude that defendant did not enter the plea knowingly, voluntarily and intelligently, and it is well settled that “[t]here can be no denial of effective assistance of [defense] counsel arising from counsel’s failure to ‘make a motion or argument that has little or no chance of success’ ” (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Keith, 26 AD3d 879, 880 [2006], lv denied 6 NY3d 835 [2006]).