People v. Caver
| Citation | 425 N.Y.S.2d 381,74 A.D.2d 852 |
| Parties | The PEOPLE, etc., Respondent, v. Michael CAVER, Appellant. |
| Decision Date | 10 March 1980 |
| Court | New York Supreme Court Appellate Division |
John F. Kuhn, Huntington, for appellant.
Denis Dillon, Dist. Atty., Mineola (Martin I. Saperstein and Anthony J. Girese, Mineola, of counsel), for respondent.
Before HOPKINS, J. P., and MANGANO, GIBBONS and RABIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 1, 1979, convicting him of attempted robbery in the second degree, upon a plea of guilty, and sentencing him to an indeterminate term of imprisonment with a maximum of three years.
Judgment affirmed.
We have reviewed defendant's contention that section 70.02 of the Penal Law violates the Constitutions of New York and the United States in that it imposes cruel and unusual punishment and abrogates the separation of legislative and judicial powers, and find this contention to be without merit (see People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. den. 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287; People v. Eason, 40 N.Y.2d 297, 386 N.Y.S.2d 673, 353 N.E.2d 587).
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...in order to determine this appeal. Were the defendant correct in arguing that the statute is unconstitutional (but see People v. Caver, 74 A.D.2d 852, 425 N.Y.S.2d 381; People v. Elliby, 80 A.D.2d 875, 436 N.Y.S.2d 784), he would at best be entitled to the exercise of discretion in sentenci......
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...of an ameliorating factor does not violate the due process clause of either the Federal or the State Constitution (see People v. Caver, 74 A.D.2d 852, 425 N.Y.S.2d 381). B No more violative of due process are the procedural provisions of paragraph (c) with respect to the hearing to be held.......
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