People v. McDermott

Appellate Division of the Supreme Court of New York

People v. McDermott

142 A.D.2d 652, 530 N.Y.S.2d 997, 1988 N.Y. App. Div. LEXIS 7356

Appellate Division of the Supreme Court of the State of New York·Decided July 11, 1988·Published·Cited by 3 cases

Opinion

— Appeal by the defendant from a judgment of the County Court, Westchester County (Colabella, J.), rendered April 12, 1985, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was permitted to plead guilty to the reduced charge of burglary in the second degree in exchange for an indeterminate sentence of 3 Vi to 7 years’ imprisonment, which is slightly in excess of the minimum allowable sentence for this class C violent felony conviction, given the defendant’s status as a second felony offender (see, Penal Law § 70.06 [3] [c]; [4] [b]). At sentencing, the defendant never controverted his status as a second felony offender.

For the first time on appeal, the defendant argues that the bargained-for sentence imposed by the court, albeit within the statutory limits, was violative of the constitutional prohibition [653]*653against cruel and unusual punishment. This issue has not been preserved for appellate review (see, People v Albano, 124 AD2d 739, lv denied 69 NY2d 824; People v Thomas, 108 AD2d 884). In any event, the contention is devoid of merit, particularly in view of the violent nature of the defendant’s criminal acts, his extensive criminal record and the absence of exceptional circumstances (see, People v Jones, 39 NY2d 694). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur.

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— Appeal by the defendant from a judgment of the County Court, Westchester County (Colabella, J.), rendered April 12, 1985, convicting him of burglary in the second degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant was permitted to plead guilty to the reduced charge of burglary in the second degree in exchange for an indeterminate sentence of 3 Vi to 7 years’ imprisonment, which is slightly in excess of the minimum allowable sentence for this class C violent felony conviction, given the defendant’s status as a second felony offender (see, Penal Law § 70.06 [3] [c]; [4] [b]). At sentencing, the defendant never controverted his status as a second felony offender.

For the first time on appeal, the defendant argues that the bargained-for sentence imposed by the court, albeit within the statutory limits, was violative of the constitutional prohibition [653]*653against cruel and unusual punishment. This issue has not been preserved for appellate review (see, People v Albano, 124 AD2d 739, lv denied 69 NY2d 824; People v Thomas, 108 AD2d 884). In any event, the contention is devoid of merit, particularly in view of the violent nature of the defendant’s criminal acts, his extensive criminal record and the absence of exceptional circumstances (see, People v Jones, 39 NY2d 694). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur.

People v. McDermott, 142 A.D.2d 652, 530 N.Y.S.2d 997, 1988 N.Y. App. Div. LEXIS 7356 (N.Y. Ct. App. 1988).

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