                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 22, 2016                   107362
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

SHANNON WHITE,
                    Appellant.
________________________________


Calendar Date:   November 18, 2016

Before:   Peters, P.J., McCarthy, Egan Jr., Lynch and Devine, JJ.

                             __________


     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 the crime of criminal sale
of a controlled substance in the third degree.

      Defendant pleaded guilty to criminal sale of a controlled
substance in the third degree in full satisfaction of an eight-
count indictment with the understanding that he would be
sentenced to a prison term of between 8 and 10 years, and the
plea agreement included a waiver of the right to appeal. County
Court thereafter sentenced defendant, as a second felony
offender, to nine years in prison, to be followed by two years of
postrelease supervision. Defendant now appeals.
                              -2-                107362

      We affirm. Contrary to defendant's contention, his waiver
of the right to appeal was valid. Both County Court and the
detailed written waiver executed by defendant in open court
informed him that the right to appeal is separate and distinct
from the rights forfeited by a guilty plea, and the court
confirmed that he had discussed the waiver with counsel and
understood its ramifications. Accordingly, we conclude that
defendant knowingly, intelligently and voluntarily waived the
right to appeal his conviction and sentence (see People v
Pandori, 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 harsh and
excessive (see People v Smith, 137 AD3d 1425, 1426 [2016], lv
denied 27 NY3d 1075 [2016]; People v Forget, 136 AD3d 1115, 1116
[2016], lv denied 28 NY3d 929 [2016]).

      As to defendant's remaining claim of ineffective assistance
of counsel, inasmuch as the claim relates to sentencing and not
the voluntariness of his plea, this claim is also precluded by
his appeal waiver (see People v White, 47 AD3d 1062, 1063 [2008],
lv denied 10 NY3d 818 [2008]; People v Howard, 1 AD3d 718, 719
[2003]). In any event, we find the claim to be unpersuasive.
Defendant contends that he was denied the effective assistance of
counsel due to counsel submitting a lengthy presentence
memorandum too close to the sentencing date to allow County Court
to properly evaluate it when determining his sentence. County
Court stated that it had reviewed the memorandum prior to
sentencing, however, and defense counsel orally made the case for
a more lenient sentence based upon defendant's medical records
before County Court imposed sentence. Accordingly, if this issue
were properly before us, we would 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.
                        -3-                  107362

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
