People v. Miller

• Decision Date: 15 June 2010
• Parties: The PEOPLE, etc., respondent, v. Phillip MILLER, appellant.
• Court: New York Supreme Court — Appellate Division

903 N.Y.S.2d 131
74 A.D.3d 1097

The PEOPLE, etc., respondent,
v.
Phillip MILLER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 15, 2010.

903 N.Y.S.2d 132

Thomas F. Liotti, Garden City, N.Y. (Drummond C. Smith of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

74 A.D.3d 1097

Appeal by the defendant, by permission, from an order of the County Court, Suffolk County (Gazzillo, J.), dated August 27, 2008, which denied, without a hearing, his motion pursuant to CPL 440.20 to set aside a sentence of the Supreme Court, Suffolk County (Copertino, J.), imposed August 7, 2000, upon his conviction of robbery in the first degree (two counts) and criminal possession of a weapon in the third degree.

ORDERED that the order is affirmed.

To the extent that the defendant claims that the sentence imposed was excessive, the defendant is procedurally barred from raising this claim, as it was previously raised and determined on the defendant's direct appeal from the judgment of conviction ( see People v. Miller, 1 A.D.3d 613, 614, 767 N.Y.S.2d 663), and, since the time of that determination, there has been no retroactively effective change in the law controlling the issue ( see CPL 440.20[2] ).

The defendant contends that his sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and that it violated his right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. The defendant's contentions are based on the fact that, while he received an aggregate sentence of 20 years imprisonment, one of his codefendants received a determinate term of seven years imprisonment, and another was acquitted at trial.

903 N.Y.S.2d 133

A sentence imposed within the statutory limits ordinarily is not cruel and unusual punishment in the constitutional sense, absent exceptional circumstances ( see People v. Jones, 39 N.Y.2d 694, 697, 385 N.Y.S.2d 525, 350 N.E.2d 913; People v. Travis, 67 A.D.3d 1034, 1035, 890 N.Y.S.2d 552; People v. Brathwaite, 263 A.D.2d 89, 92, 703 N.Y.S.2d 191). Here, the defendant failed to demonstrate the existence of exceptional circumstances that would render his sentence, which was within the statutory limits, cruel and unusual punishment ( see People v. Clerge, 69 A.D.3d...