State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 22, 2016 107362 

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THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

SHANNON WHITE,

Appellant.

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Calendar Date: November 18, 2016

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

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William T. Morrison, Albany, for appellant.

Robert M. Carney, District Attorney, Schenectady (Tracey A.

Brunecz of counsel), for respondent.

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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 eightcount 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