People v. Zakrzewski

• Decision Date: 30 June 2016
• Citation: 140 A.D.3d 1536,33 N.Y.S.3d 782 (Mem),2016 N.Y. Slip Op. 05194
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael R. ZAKRZEWSKI, Appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1536

33 N.Y.S.3d 782 (Mem)

2016 N.Y. Slip Op. 05194

The PEOPLE of the State of New York, Respondent,

v.Michael R. ZAKRZEWSKI, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

June 30, 2016.

Bruce Evans Knoll, Albany, for appellant.

Karen Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, EGAN JR., ROSE and CLARK, JJ.

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 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 intelligently waived his right to appeal (see People v. Lopez, 6 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006]

). County Court explained the meaning of an appeal waiver, distinguished it from the trial-related 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 A.D.3d 1164, 1164–1165, 22 N.Y.S.3d 711 [2016]

, lv. denied 27 N.Y.3d 1006, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [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 A.D.3d 1279, 1280, 9 N.Y.S.3d 739 [2015], lv. denied 26 N.Y.3d 930, 17 N.Y.S.3d 93, 38 N.E.3d 839 [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 A.D.3d 1486, 1487, 28 N.Y.S.3d 479 [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 A.D.3d 1220, 1221, 25 N.Y.S.3d 727 [2016] [internal quotation marks and citation omitted], lv denied ––– N.Y. 3d ––––, –––N.Y.S.3d ––––, ––– N.E.3d –––– [May 13, 2016] ; see

People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [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 A.D.3d 1348, 1349, 21 N.Y.S.3d 648 [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 A.D.3d 1239, 1241, 23 N.Y.S.3d 481 [2016]

, lv denied 27 N.Y.3d 995, –––N.Y.S.3d ––––, ––– N.E.3d –––– [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...