People v. Day

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: November 5, 2015 106486 ________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MEMORANDUM AND ORDER ADAM DAY, Appellant. ________________________________ Calendar Date: September 9, 2015 Before: Peters, P.J., Lahtinen, Garry and Rose, JJ. __________ John Ferrara, Monticello, for appellant. James R. Farrell, District Attorney, Monticello (Michael J. Andreani of counsel), for respondent. __________ 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 5½ 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. -2- 106486 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 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 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 AD3d 1094, 1095 [2015]). Peters, P.J., Garry and Rose, JJ., concur. ORDERED that the judgment is affirmed. ENTER: Robert D. Mayberger Clerk of the Court