| People v Zakrzewski |
| 2016 NY Slip Op 05194 [140 AD3d 1536] |
| June 30, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Michael R. Zakrzewski, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Saratoga County (Scarano,J.), rendered December 23, 2014, convicting defendant upon his plea of guilty of thecrimes of burglary in the third degree and criminal possession of stolen property in thefourth degree.
Pursuant to a combined plea agreement resolving two indictments against him,defendant waived his right to appeal and pleaded guilty to burglary in the third degreeand criminal possession of stolen property in the fourth degree. The plea also resolved aviolation of probation petition. County Court thereafter sentenced defendant on eachconviction to the agreed-upon prison term of 1 to 3 years, to be served concurrently.
Defendant appeals.
We affirm. Initially, we find that defendant knowingly, voluntarily and intelligentlywaived his right to appeal (seePeople v Lopez, 6 NY3d 248, 256 [2006]). County Court explained the meaningof an appeal waiver, distinguished it from the trial-related rights automatically forfeitedby a guilty plea and ascertained that defendant had discussed it with counsel andunderstood it. Defendant also signed written waivers of appeal in open court, with theassistance of counsel (seePeople v Sawyer, 135 AD3d 1164, 1164-1165 [2016], lv denied 27NY3d 1006 [2016]). Thus, defendant's challenge to the factual sufficiency of the pleaallocution is precluded by his valid appeal waiver (see People v Jackson, 128 AD3d 1279, 1280 [2015], lvdenied 26 NY3d 930 [2015]). While his challenge to the plea as involuntary survivesthe appeal [*2]waiver, it is unpreserved as the recorddoes not disclose that he made a postallocution motion to withdraw his plea (seeCPL 220.60 [3]; People vLove, 137 AD3d 1486, 1487 [2016]). Moreover, the record does not reflect thatdefendant made any statements during the plea allocution "that negated an element of thecrime or otherwise called into doubt his guilt or the voluntariness of his plea" (People v Davis, 136 AD3d1220, 1221 [2016] [internal quotation marks and citation omitted], lv denied— NY3d — [May 13, 2016]; see People v Lopez, 71 NY2d 662,666 [1988]).
To the extent that defendant's ineffective assistance of counsel claim implicates thevoluntariness of his plea, it survives his appeal waiver, but this issue is also not properlybefore us because of defendant's failure to make a postallocution motion (see People v Islam, 134 AD3d1348, 1349 [2015]). Indeed, defendant's claims primarily concern matters that areoutside the record on appeal and are more appropriately addressed in a motion to vacatepursuant to CPL article 440 (seePeople v Clark, 135 AD3d 1239, 1241 [2016], lv denied 27 NY3d 995[2016]). While defendant complained at sentencing about his defense counsel andexpressed dissatisfaction with the agreed-upon sentence, he never indicated a desire towithdraw his plea, and there is no evidence that he requested that his counsel make sucha motion or that substitute counsel be assigned, and we do not find that the court wasobligated to offer this relief sua sponte (see People v Tyler, 130 AD3d 1383, 1384-1385 [2015]; People v Good, 83 AD3d1124, 1126 [2011], lv denied 17 NY3d 816 [2011]). Further, the courtanswered his questions regarding credit for time served. Defendant's remaining claimsalso lack merit.
Peters, P.J., Lahtinen, Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed.