Opinion
12-08-2016
The PEOPLE of the State of New York, Respondent, v. Peter N. GOLGOSKI, Appellant.
Salvatore C. Adamo, Albany, for appellant. Jason J. Kovacs, Special Prosecutor, Kingston, for respondent.
Salvatore C. Adamo, Albany, for appellant.
Jason J. Kovacs, Special Prosecutor, Kingston, for respondent.
Before: GARRY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.
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.
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 N.Y.3d 359, 361, 981 N.Y.S.2d 336, 4 N.E.3d 346 [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 N.Y.3d 375, 381–382, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Forest, 141 A.D.3d 967, 968, 36 N.Y.S.3d 296 [2016] ). The record, in any event, “shows that defendant was fully advised of his trial-related rights during the allocution” (People v. Sommers, 140 A.D.3d 1537, 1538, 33 N.Y.S.3d 789 [2016], lv. denied 28 N.Y.3d 974, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; see People v. Walker, 135 A.D.3d 1244, 1245–1246, 23 N.Y.S.3d 485 [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 N.Y.3d 337, 340–341, 12 N.Y.S.3d 593, 34 N.E.3d 344 [2015] ; People v. Sommers, 140 A.D.3d at 1538, 33 N.Y.S.3d 789).
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 A.D.3d 1534, 1535, 33 N.Y.S.3d 780 [2016], lv. denied 28 N.Y.3d 972, ––– N.Y.S.3d ––––, ––– N.E.3d –––– [2016] ; People v. Johnson, 54 A.D.3d 1133, 1134, 864 N.Y.S.2d 219 [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 A.D.3d 958, 959, 995 N.Y.S.2d 413 [2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015] ; People v. Gryner, 116 A.D.3d 1247, 1248, 983 N.Y.S.2d 740 [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 N.Y.3d 248, 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Constantopoules, 141 A.D.3d 942, 943, 34 N.Y.S.3d 912 [2016] ).
ORDERED that the judgment is affirmed.
GARRY, J.P., EGAN JR., ROSE and MULVEY, JJ., concur.