                           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 agreed-
upon 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 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 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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                                                   107400

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
