Opinion
October 28, 1970
Appeal from a judgment of the County Court of Chemung County, rendered August 25, 1969, convicting defendant on his plea of guilty of rape in the first degree. Appellant was indicted with four others for rape in the first degree, assault in the first degree, robbery in the second degree and sodomy in the first degree. His attorney's application that an investigation be made to determine defendant's eligibility for youthful offender treatment was opposed by the District Attorney and denied by the court after consideration during a two-day adjournment. Thereafter defendant pleaded guilty to rape in the first degree in full satisfaction of the indictment and was sentenced to an indeterminate term of not less than four years and not more than twelve years. No recommendation was made to the County Court by the Grand Jury or the District Attorney that defendant be investigated to determine whether he was eligible to be adjudged a youthful offender. The court could have directed an investigation for that purpose (Code Crim. Pro., § 913-g) but this matter was discretionary with it, the court having the right, in exercising its discretion, to weigh whatever facts were available with reference to such matters as the crimes charged, the previous reputation of defendant and his attitude towards society ( Matter of Tschornyi v. County Court, 283 App. Div. 910, mot. for lv. to app. den. 307 N.Y. 942; cf. People v. Carpenteur, 21 N.Y.2d 571, 573, 574), and no basis has been demonstrated warranting interference with that discretion. Contrary to appellant's contention, the court's statement that the minimum sentence was so fixed "because this was a serious crime committed in the complainant's own home, inflicting serious injuries on the complainant and by more than one individual" adequately complied with section 70.00 (subd. 3, par. [b]) of the Penal Law ( People v. Williams, 34 A.D.2d 695). The mere fact that the statute does not require the imposition of a minimum sentence in all cases does not render it unconstitutional, as urged (cf. Williams v. New York, 337 U.S. 241; Andrus v. Turner, 421 F.2d 290, 292) nor was appellant denied equal protection of the laws because a codefendant received a different sentence ( Howard v. Fleming, 191 U.S. 126). The sentence was not excessive. Judgment affirmed. Herlihy, P.J., Reynolds, Staley, Jr., Cooke and Sweeney, JJ., concur.