State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 30, 2016 107399 

107400

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL R. ZAKRZEWSKI,

Appellant.

________________________________

Calendar Date: June 3, 2016

Before: Peters, P.J., Lahtinen, Egan Jr., Rose and Clark, JJ.

__________

Bruce Evans Knoll, Albany, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Gordon W.

Eddy of counsel), for respondent.

__________

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 the crimes of burglary in

the third degree and criminal possession of stolen property in

the fourth 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 degree and criminal

possession of stolen property in the fourth degree. The plea

also resolved a violation of probation petition. County Court

thereafter sentenced defendant on each conviction to the agreedupon prison term of 1 to 3 years, to be served concurrently. 
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Defendant appeals.

We affirm. Initially, we find that defendant knowingly,

voluntarily and intelligently waived his right to appeal (see

People v Lopez, 6 NY3d 248, 256 [2006]). County Court explained

the meaning of an appeal waiver, distinguished it from the trialrelated rights automatically forfeited by a guilty plea and

ascertained that defendant had discussed it with counsel and

understood it. Defendant also signed written waivers of appeal

in open court, with the assistance of counsel (see People v

Sawyer, 135 AD3d 1164, 1164-1165 [2016], lv denied 27 NY3d 1006

[2016]). Thus, defendant's challenge to the factual sufficiency

of the plea allocution is precluded by his valid appeal waiver

(see People v Jackson, 128 AD3d 1279, 1280 [2015], lv denied 26

NY3d 930 [2015]). While his challenge to the plea as involuntary

survives the appeal waiver, it is unpreserved as the record does

not disclose that he made a postallocution motion to withdraw his

plea (see CPL 220.60 [3]; People v Love, 137 AD3d 1486, 1487

[2016]). Moreover, the record does not reflect that defendant

made any statements during the plea allocution "that negated an

element of the crime or otherwise called into doubt his guilt or

the voluntariness of his plea" (People v Davis, 136 AD3d 1220,

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 the voluntariness of his plea, it

survives his appeal waiver, but this issue is also not properly

before us because of defendant's failure to make a postallocution

motion (see People v Islam, 134 AD3d 1348, 1349 [2015]). Indeed,

defendant's claims primarily concern matters that are outside the

record on appeal and are more appropriately addressed in a motion

to vacate pursuant to CPL article 440 (see People v Clark, 135

AD3d 1239, 1241 [2016], lv denied 27 NY3d 995 [2016]). While

defendant complained at sentencing about his defense counsel and

expressed dissatisfaction with the agreed-upon sentence, he never

indicated a desire to withdraw his plea, and there is no evidence

that he requested that his counsel make such a motion or that

substitute counsel be assigned, and we do not find that the court
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was obligated to offer this relief sua sponte (see People v

Tyler, 130 AD3d 1383, 1384-1385 [2015]; People v Good, 83 AD3d

1124, 1126 [2011], lv denied 17 NY3d 816 [2011]). Further, the

court answered his questions regarding credit for time served. 

Defendant's remaining claims also lack merit.

Peters, P.J., Lahtinen, Egan Jr. and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court