Opinion
October 22, 1984
Appeal from the Supreme Court, Queens County (Zelman, J.).
Judgment affirmed.
Defendant was sentenced as a second felony offender, pursuant to section 70.06 Penal of the Penal Law. On appeal he does not controvert the prior felony conviction. His claim that the sentence was excessive ignores the fact that the sentence imposed for each offense was the minimum sentence authorized by section 70.06 Penal of the Penal Law. We find no merit in defendant's assertion that to the extent that section 70.06 mandates a minimum term of imprisonment for a second felony offender, that statute precludes a sentencing court from considering mitigating factors to insure that the punishment is appropriate for the individual and proportionate to the offense, and therefore violates the provisions of the Federal and New York State Constitutions prohibiting cruel and unusual punishment. Defendant's reliance on Supreme Court cases declaring statutes which mandate the death penalty unconstitutional, is misplaced. "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long" ( Woodson v North Carolina, 428 U.S. 280, 305; Runnel v Estelle, 445 U.S. 263, 272). Individualized sentencing based on a consideration of the character and record of the accused is indispensable where the penalty of death may be imposed, but is not a constitutional imperative in noncapital cases ( Woodson v North Carolina, supra, p. 304; People v Cates, 104 A.D.2d 895; see People v Broadie, 45 A.D.2d 649, 652, aff'd 37 N.Y.2d 100, 117, cert. den. 423 U.S. 950). In People v Bryant ( 47 A.D.2d 51, 61-62) we rejected the contention that the mandatory minimum sentencing provisions of section 70.06 Penal of the Penal Law proscribes such inflexibility in sentencing as to constitute cruel and unusual punishment within the meaning of the Eighth Amendment of the Federal Constitution (see, also, People v Galpin, 49 A.D.2d 654; People v Brown, 46 A.D.2d 255). The reasoning in Bryant is equally applicable to a challenge under the parallel provision of section 5 of article I of the Constitution of the State of New York.
We have examined the other arguments raised by defendant and find them to be without merit. Titone, J.P., Bracken, Boyers and Lawrence, JJ., concur.