14 A.D.3d 411
N.Y. App. Div.
2005

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v LLOYD FISHMAN, Appellant.

Supreme Court, Appellate Division, First Department, New York

September 6, 2001

787 N.Y.S.2d 866

Robert G. Seewald, J.

Judgment, Supreme Court, Bronx County (Robert G. Seewald, J.), rendered September 6, 2001, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 8 1/2 to 17 years, unanimously affirmed.

Defendant‘s valid waiver of his right to appeal forecloses his claim that the trial court failed to exercise its sentencing discretion (see People v Callahan, 80 NY2d 273 [1992]; People v Diaz, 304 AD2d 468 [2003], lv denied 100 NY2d 561 [2003]). Were we to conclude otherwise, we would find this claim to be unpreserved and unavailing. Even if we were to conclude that the court mistakenly believed that it had no discretion to impose a lower sentence, there would be no need to remand for resentencing because the court expressed no reservations about the agreed-upon sentence (id.).

The appeal waiver also forecloses defendant‘s excessive sentence claim, and if we were to find otherwise, we would perceive no basis for reducing the sentence. Concur—Buckley, P.J., Tom, Andrias, Marlow and Ellerin, JJ.