                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 5, 2015                   106486
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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
