People v. Sterling ( 1976 )

Eugene W. Bergin, J.

The defendant makes a pro se application to vacate his sentence of August 7, 1975 wherein the defendant was sentenced as a second felony offender to an indeterminate term with a minimum of IV2 years and a maximum of 15 years. The defendant had previously pled guilty to the crime of robbery, first degree on June 25, 1975 after receiving a promise from this court that he would not receive the maximum term of 25 years. The defendant now contends that section 70.06 of the Penal Law is unconstitutional and accordingly the sentence of August 7, 1975 should be set aside. I disagree.

The application of section 70.06 has previously been declared to be unconstitutional only where the alleged predicate conviction would not have been a felony under New York law. (People v Mazzie, 78 Misc 2d 1014; People v Morton, 48 AD2d 58.) The defendant herein was previously convicted in the State of Utah of the crime of armed robbery on July 27, 1968. Such crime is a felony in New York State. Section 70.06 is not unconstitutional as applied to this defendant. The application is in all respects denied.