People v. Sherman ( 1983 )

— Appeal from a judgment of the County Court of Broome County (Coutant, J.), rendered July 22, 1982, convicting defendant upon his plea of guilty of the crime of grand larceny in the third degree. Defendant entered a plea of guilty to grand larceny in the third degree and was sentenced by the County Court of Broome County to a one and one-half to three-year term of imprisonment to run concurrently with a sentence to be imposed in Chemung County. On this appeal, defendant first contends that section 70.06 of the Penal Law relating to imposition of a mandatory sentence of imprisonment on second felony offenders was unconstitutionally applied to him in violation of his constitutional rights. He asserts in this case, as he does in the appeal from his Chemung County conviction (People v Sherman, 96 AD2d 1003 [No. 5]), that the criminal act upon which the predicate felony conviction arose occurred in August, 1973, prior to the September 1, 1973 effective date of section 70.06. Defendant argues that since the criminal act occurred prior to the effective date of section 70.06, the second felony offender provision cannot be constitutionally applied to him. This argument is not persuasive (Gryger v Burke, 334 US 728, 732; People v Pray, 50 AD2d 987; see, also, People v Starks, 78 Mise 2d 87, affd 53 AD 2d 1066). Defendant’s remaining contention that the sentence imposed upon this conviction was harsh and excessive is rejected (People v St. Mary, 55 AD2d 968). Judgment affirmed. Main, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.