                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 6, 2016                   107177
________________________________

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

LEON SAMUEL,
                    Appellant.
________________________________


Calendar Date:   September 13, 2016

Before:   McCarthy, J.P., Garry, Devine, Clark and Mulvey, JJ.

                             __________


     Keeley A. Maloney, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered October 21, 2014, convicting defendant upon
his plea of guilty of the crime of robbery in the third degree.

      Defendant waived indictment and was charged in a superior
court information with robbery in the third degree. He pleaded
guilty to this crime in satisfaction of another pending charge
and waived his right to appeal, both orally and in writing. In
accordance with the terms of the plea agreement, defendant was
sentenced, as a second felony offender, to 3 to 6 years in
prison. He now appeals.

      Initially, the record discloses that defendant validly
waived his right to appeal, as County Court separately addressed
                              -2-                  107177

and distinguished this right from the other rights that defendant
was automatically forfeiting by pleading guilty, and defendant
communicated his understanding thereof and agreed to waive his
right to appeal (see People v Cota, 136 AD3d 1116, 1116-1117
[2016]; People v Butler, 134 AD3d 1349, 1349-1350 [2015], lvs
denied 27 NY3d 962, 963 [2016]). In addition, defendant executed
a written appeal waiver that both he and his counsel signed in
open court and presented to County Court (see People v Butler,
134 AD3d at 1349-1350; People v Rubio, 133 AD3d 1041, 1042
[2015]). Inasmuch as defendant knowingly, voluntarily and
intelligently waived his right to appeal, he is precluded from
challenging the severity of the sentence (see People v Butler,
134 AD3d at 1350; People v Almeida, 127 AD3d 1499, 1500 [2015],
lv denied 26 NY3d 1006 [2015]). Defendant further argues that
his counsel was ineffective in failing to bring certain
mitigating circumstances to County Court's attention and to
address the effect that his guilty plea may have upon his federal
probation. As this claim pertains to sentencing and does not
implicate the voluntariness of defendant's guilty plea, it is
also foreclosed by defendant's valid appeal waiver (see People v
Livziey, 117 AD3d 1341, 1342 [2014]; People v Coffey, 77 AD3d
1202, 1204 [2010], lv denied 18 NY3d 882 [2012]).

     McCarthy, J.P., Garry, Devine and Mulvey, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
