People v. DeFalco

149 A.D.2d 610, 540 N.Y.S.2d 686, 1989 N.Y. App. Div. LEXIS 4904

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1989
• Status: Published

Opinion

— Appeal by the defendant, as limited by his brief, from a sentence of the County Court, Suffolk County (Vaughn, J.), imposed November 17, 1986, upon his conviction of burglary in the second degree, after a plea of guilty, the sentence being 4 to 8 years’ imprisonment.

Ordered that the sentence is affirmed.

The defendant’s sole argument on appeal is that the sentence imposed constitutes cruel and unusual punishment in violation of constitutional proscriptions (NY Const, art I, § 5; US Const 8th Amend). "[Ojrdinarily a sentence that is within statutory limits does not constitute cruel and unusual punishment absent exceptional circumstances (People v Jones, 38 NY2d 694)” (People v Albano, 124 AD2d 739, 740, lv denied 69 NY2d 824; People v Roberts, 144 AD2d 395; People v Medina, 140 AD2d 549, 550). In this case, the sentencing court considered, inter alia, the fact that the defendant, who was adjudicated a second felony offender, was under probationary supervision at the time he committed this offense, before imposing, as promised, the less than maximum permissible term for a class C second felony offense. There are no exceptional circumstances in this case warranting modification of the sentence. Mangano, J. P., Brown, Lawrence, Kooper and Harwood, JJ., concur.