State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 107227 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

PETER N. GOLGOSKI,

Appellant.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

Salvatore C. Adamo, Albany, for appellant.

Jason J. Kovacs, Special Prosecutor, Kingston, for

respondent.

__________

Devine, J.

Appeal from a judgment of the County Court of Ulster County

(Williams, J.), rendered June 20, 2014, convicting defendant upon

his plea of guilty of the crime of criminal sale of a controlled

substance in the third degree.

In satisfaction of a six-count indictment, defendant

pleaded guilty to criminal sale of a controlled substance in the

third degree and waived his right to appeal from the conviction

and sentence. County Court imposed upon defendant, a second

felony offender, the agreed-upon sentence of six years in prison

to be followed by three years of postrelease supervision. 

Defendant appeals, and we now affirm.
-2- 107227 

Defendant first contends that his plea was not knowing,

intelligent and voluntary because County Court failed to advise

him of the trial-related rights he was forfeiting by pleading

guilty (see People v Tyrell, 22 NY3d 359, 361 [2013]). Defendant

did not advance this issue in an appropriate postallocution

motion, despite having had sufficient opportunity to do so, and

it is accordingly unpreserved for our review (see People v

Conceicao, 26 NY3d 375, 381-382 [2015]; People v Forest, 141 AD3d

967, 968 [2016]). The record, in any event, "shows that

defendant was fully advised of his trial-related rights during

the allocution" (People v Sommers, 140 AD3d 1537, 1538 [2016], lv

denied 28 NY3d 974 [2016]; see People v Walker, 135 AD3d 1244,

1245-1246 [2016]). 

Defendant's further challenge to the validity of his appeal

waiver is unavailing. County Court explained the right to appeal

to defendant and distinguished it from the rights he was giving

up by pleading guilty, all of which defendant confirmed that he

understood. He then reviewed a detailed written waiver with

counsel and signed it in open court. Defendant's appeal waiver

was therefore a knowing, intelligent and voluntary one (see

People v Sanders, 25 NY3d 337, 340-341 [2015]; People v Sommers,

140 AD3d at 1538). 

Defendant's remaining claims are not properly before us. 

The assertion that defendant received the ineffective assistance

of counsel, to the extent that it survives his guilty plea and

appeal waiver, is unpreserved given the lack of an appropriate

postallocution motion (see People v Lobaton, 140 AD3d 1534, 1535

[2016], lv denied 28 NY3d 972 [2016]; People v Johnson, 54 AD3d

1133, 1134 [2008]). By pleading guilty, defendant waived his

contention that County Court erred in denying his motion to

disqualify the special prosecutor (see People v Abdullah, 122

AD3d 958, 959 [2014], lv denied 24 NY3d 1218 [2015]; People v

Gryner, 116 AD3d 1247, 1248 [2014]). Lastly, defendant's

protestation that the agreed-upon sentence was harsh and

excessive is precluded by his valid appeal waiver (see People v

Lopez, 6 NY3d 248, 256 [2006]; People v Constantopoules, 141 AD3d

942, 943 [2016]).
-3- 107227 

Garry, J.P., Egan Jr., Rose and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court