People v Day

2015 NY Slip Op 08007 [133 AD3d 920]

November 5, 2015

Appellate Division, Third Department

As corrected through Wednesday, December 30, 2015

[*1]

The People of the State of New York, Respondent, vAdam Day, Appellant.

John Ferrara, Monticello, for appellant.

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

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 guiltyof the crime of criminal sale of a controlled substance in the third degree (twocounts).

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 thethird degree in satisfaction of the indictment and waived his right to appeal in exchangefor a prison sentence of either 51/2 or 6 years. County Court sentenceddefendant, a second felony offender, to six years in prison followed by a period ofpostrelease supervision. Defendant appeals arguing that his sentence is excessive.

We affirm. Assuming, without deciding, that defendant's appeal waiver was invalidso as to permit consideration of the sentence issue (see People v Rolley, 100 AD3d 1263, 1263-1264 [2012];People v Caines, 268 AD2d 790, 791 [2000], lv denied 95 NY2d 833[2000]; cf. People v Vellon,128 AD3d 1274, 1275 [2015]), we nevertheless find neither an abuse of discretionnor extraordinary circumstances meriting a reduction of defendant's sentence in light ofhis criminal record and the imposition of a sentence within the agreed range (see People v Rabideau, 130AD3d 1094, 1095 [2015]).

Peters, P.J., Garry and Rose, JJ., concur. Ordered that the judgment is affirmed.