| People v White |
| 2016 NY Slip Op 08568 [145 AD3d 1324] |
| December 22, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vShannon White, Appellant. |
William T. Morrison, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Tracey A. Brunecz of counsel),for respondent.
Devine, J. Appeal from a judgment of the County Court of Schenectady County(Hoye, J.), rendered January 26, 2015, convicting defendant upon his plea of guilty of thecrime of criminal sale of a controlled substance in the third degree.
Defendant pleaded guilty to criminal sale of a controlled substance in the thirddegree in full satisfaction of an eight-count indictment with the understanding that hewould be sentenced to a prison term of between 8 and 10 years, and the plea agreementincluded a waiver of the right to appeal. County Court thereafter sentenced defendant, asa second felony offender, to nine years in prison, to be followed by two years ofpostrelease supervision. Defendant now appeals.
We affirm. Contrary to defendant's contention, his waiver of the right to appeal wasvalid. Both County Court and the detailed written waiver executed by defendant in opencourt informed him that the right to appeal is separate and distinct from the rightsforfeited by a guilty plea, and the court confirmed that he had discussed the waiver withcounsel and understood its ramifications. Accordingly, we conclude that defendantknowingly, intelligently and voluntarily waived the right to appeal his conviction andsentence (see People vPandori, 133 AD3d 1044, 1045 [2015]; People v Mayo, 130 AD3d 1099, 1099-1100 [2015]).Defendant's valid appeal waiver precludes him from challenging his sentence as harshand excessive (see People vSmith, 137 AD3d 1425, 1426 [2016], lv denied 27 NY3d 1075 [2016];People v Forget, 136 AD3d1115, 1116 [2016], lv denied 28 NY3d 929 [2016]).
[*2] As to defendant's remaining claim of ineffectiveassistance of counsel, inasmuch as the claim relates to sentencing and not thevoluntariness of his plea, this claim is also precluded by his appeal waiver (see People v White, 47 AD3d1062, 1063 [2008], lv denied 10 NY3d 818 [2008]; People v Howard, 1 AD3d718, 719 [2003]). In any event, we find the claim to be unpersuasive. Defendantcontends that he was denied the effective assistance of counsel due to counsel submittinga lengthy presentence memorandum too close to the sentencing date to allow CountyCourt to properly evaluate it when determining his sentence. County Court stated that ithad reviewed the memorandum prior to sentencing, however, and defense counsel orallymade the case for a more lenient sentence based upon defendant's medical records beforeCounty Court imposed sentence. Accordingly, if this issue were properly before us, wewould find that it was without merit (see People v Johnson, 267 AD2d 609, 610[1999]).
Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.