Opinion
3177.
Decided March 23, 2004.
Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered September 25, 2002, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 4½ to 9 years, unanimously affirmed.
David Rong, for Respondent.
Sarah Geraghty Daniel A. Warshawsky, for Defendant-Appellant.
Before: Nardelli, J.P., Mazzarelli, Saxe, Friedman, JJ.
Defendant's valid waiver of his right to appeal forecloses his claim that the court failed to exercise any discretion in sentencing ( see People v. Callahan, 80 N.Y.2d 273; People v. Diaz, 304 A.D.2d 468, lv denied 100 N.Y.2d 561). Were we to conclude otherwise, we would find defendant's claim to be unpreserved and unavailing. We note that defendant's sentence was lawful, and that he received the minimum sentence permitted by law. The question of whether defendant deserved even further leniency, by way of a plea to a lesser offense, was a matter of prosecutorial discretion ( Weatherford v. Bursey, 429 U.S. 545, 561).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.