People v. Battice

104 A.D.2d 1042, 481 N.Y.S.2d 113, 1984 N.Y. App. Div. LEXIS 20478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 1984
• Status: Published

Opinion

— Appeal by defendant, as limited by his brief, from two sentences of the Supreme Court, Kings County (Bernstein, J.), both imposed November 23, 1982, upon his conviction of criminal possession of a weapon in the second degree and burglary in the second degree, on his pleas of guilty, the sentences being concurrent terms of imprisonment of from 3 to 9 years.

Sentences affirmed.

Defendant’s contention that section 70.02 of the Penal Law, which mandates that a sentence of imprisonment be imposed upon a conviction for a violent felony offense, is unconstitutional because it fails to allow particularized consideration of relevant aspects of the character and record of each defendant has not been preserved for appellate review and is, in any event, merit-less (see People v Cates, 104 AD2d 895; People v Brabham, 104 AD2d 1043; see, also, People v Kepple, 98 AD2d 783; People v Caver, 74 AD2d 852; People v Zimmerman, 36 Cal 3d 154; Britton v Rogers, 631 F2d 572, 579, cert den 451 US 939). Titone, J. P., Lazer, Bracken and Boyers, JJ., concur.