| People v Platero |
| 2009 NY Slip Op 05214 [63 AD3d 1446] |
| June 25, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bryan K.Platero, Appellant. |
—[*1] Julie A. Garcia, District Attorney, Elizabethtown, for respondent.
Kavanagh, J. Appeal from a judgment of the County Court of Essex County (Meyer, J.),rendered March 25, 2008, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree.
In satisfaction of three pending indictments, defendant pleaded guilty to one count ofcriminal sale of a controlled substance in the third degree and waived his right to appeal.Pursuant to the terms of the plea agreement, the People and defendant both recommended thatdefendant be sentenced to a prison term of seven years and postrelease supervision of betweenone and two years. County Court deemed the recommended sentence to be inappropriate andsentenced defendant, as a second felony offender, to a prison term of 10 years and postreleasesupervision of three years. Defendant appeals and we affirm.
Defendant argues that no information properly before County Court justified its failure toimpose the recommended sentence. County Court was not obligated to follow thatrecommendation, as it advised defendant of both its authority to render a different sentence andthe maximum prison sentence that was permissible (see People v Watson, 61 AD3d 1217, 1219 [2009]; People vRawdon, 296 AD2d 599, 599 [2002], lv denied 98 NY2d 771 [2002]). Accordingly,defendant's argument amounts to a challenge to the procedures used by the court in determininghis sentence and is precluded by his appeal waiver (see People v Callahan, 80 NY2d 273,281 [1992]; People v Hicks, 201 AD2d 831, 832 [1994], lv denied 83 NY2d 911[1994]; cf. [*2]People v Gordon, 53 AD3d 793, 794 [2008]).
Finally, defendant's appeal waiver also precludes our review of his challenge to the sentenceas harsh and excessive (see People vBunce, 45 AD3d 982, 985 [2007], lv denied 10 NY3d 809 [2008]; People v Perry, 2 AD3d 1153,1153 [2003], lv denied 2 NY3d 744 [2004]).
Mercure, J.P., Rose, Kane and Garry, JJ., concur. Ordered that the judgment is affirmed.