People v. Navas

Appellate Division of the Supreme Court of New York

People v. Navas

114 A.D.2d 425, 494 N.Y.S.2d 141, 1985 N.Y. App. Div. LEXIS 53114

Appellate Division of the Supreme Court of the State of New York·Decided October 15, 1985·Published·Cited by 1 cases

Opinion

—Appeal by defendant from a judgment of the County Court, Suffolk County (Sherman, J.), [426] rendered July 6, 1983, convicting him of burglary in the first degree (two counts) and robbery in the first degree, upon his plea of guilty, and sentencing him as a second violent felony offender to concurrent indeterminate terms of imprisonment of 6 to 12 years.

Judgment affirmed.

On this appeal, the defendant contends for the first time that, as applied to him, the second violent felony offender statute (Penal Law § 70.04) is unconstitutional. Having failed to raise this issue prior to the imposition of sentence, the defendant has not preserved for appellate review the constitutionality of the second violent felony offender statute (see, CPL 470.05 [2]; People v Oliver, 63 NY2d 973; People v Cates, 104 AD2d 895; People v Carrisquello, 106 AD2d 513). In any event, were we to review the issue presented, we would conclude that under the circumstances present there is no merit to the defendant’s claim that the sentences imposed were so disproportionate to the crimes committed as to constitute cruel and unusual punishment (see, United States v Ortiz, 742 F2d 712, cert denied — US —, 105 S Ct 573; People v Donovan, 89 AD2d 968, affd 59 NY2d 834). Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

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—Appeal by defendant from a judgment of the County Court, Suffolk County (Sherman, J.), [426] rendered July 6, 1983, convicting him of burglary in the first degree (two counts) and robbery in the first degree, upon his plea of guilty, and sentencing him as a second violent felony offender to concurrent indeterminate terms of imprisonment of 6 to 12 years.

Judgment affirmed.

On this appeal, the defendant contends for the first time that, as applied to him, the second violent felony offender statute (Penal Law § 70.04) is unconstitutional. Having failed to raise this issue prior to the imposition of sentence, the defendant has not preserved for appellate review the constitutionality of the second violent felony offender statute (see, CPL 470.05 [2]; People v Oliver, 63 NY2d 973; People v Cates, 104 AD2d 895; People v Carrisquello, 106 AD2d 513). In any event, were we to review the issue presented, we would conclude that under the circumstances present there is no merit to the defendant’s claim that the sentences imposed were so disproportionate to the crimes committed as to constitute cruel and unusual punishment (see, United States v Ortiz, 742 F2d 712, cert denied — US —, 105 S Ct 573; People v Donovan, 89 AD2d 968, affd 59 NY2d 834). Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

People v. Navas, 114 A.D.2d 425, 494 N.Y.S.2d 141, 1985 N.Y. App. Div. LEXIS 53114 (N.Y. Ct. App. 1985).

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Opinion

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