People v. Day

LAHTINEN, J.

John Ferrara, Monticello, for appellant.

James R. Farrell, District Attorney, Monticello (Michael J. Andreani of counsel), for respondent.

Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.

LAHTINEN, J.

Appeal from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered December 19, 2013, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree (two counts).

Faced with a five-count indictment and potential lengthy consecutive sentences, defendant pleaded guilty to two counts of criminal sale of a controlled substance in the third degree in satisfaction of the indictment and waived his right to appeal in exchange for a prison sentence of either 5 ½ or 6 years. County Court sentenced defendant, a second felony offender, to six years in prison followed by a period of postrelease supervision. Defendant appeals arguing that his sentence is excessive.

We affirm. Assuming, without deciding, that defendant's appeal waiver was invalid so as to permit consideration of the sentence issue (see People v. Rolley, 100 A.D.3d 1263, 1263–1264, 954 N.Y.S.2d 684 [2012] ; People v. Caines, 268 A.D.2d 790, 791, 702 N.Y.S.2d 212 [2000], lv. denied 95 N.Y.2d 833, 713 N.Y.S.2d 139, 735 N.E.2d 419 [2000] ; cf. People v. Vellon, 128 A.D.3d 1274, 1275, 10 N.Y.S.3d 347 [2015] ), we nevertheless find neither an abuse of discretion nor extraordinary circumstances meriting a reduction of defendant's sentence in light of his criminal record and the imposition of a sentence within the agreed range (see People v. Rabideau, 130 A.D.3d 1094, 1095, 12 N.Y.S.3d 386 [2015] ).

ORDERED that the judgment is affirmed.

PETERS, P.J., GARRY and ROSE, JJ., concur.