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