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People v. Thomas

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 1985
108 A.D.2d 884 (N.Y. App. Div. 1985)

Opinion

February 19, 1985

Appeal from the Supreme Court, Suffolk County (McInerney, J.).


Judgment affirmed.

Defendant's conviction arises from events which occurred while he was incarcerated in the Suffolk County Jail serving a one-year sentence for burglary in the third degree. We have reviewed the record and conclude that viewed in a light most favorable to the prosecution the evidence was sufficient to establish that the defendant extorted money from two fellow inmates by instilling in them a fear that they would be physically harmed if they did not pay him ( People v Contes, 60 N.Y.2d 620; Penal Law § 155.40; see, People v Dioguardi, 8 N.Y.2d 260). Defendant was sentenced as a second felony offender to the minimum sentence authorized by Penal Law § 70.06. At sentencing, defendant did not controvert the predicate felony conviction and, clearly aware of the statutory sentencing range, urged the court to be as lenient as possible. Defendant's claim, raised for the first time on appeal, that the sentencing statute is unconstitutional as applied to him and that under the circumstances the mandatory minimum authorized sentence of 3 to 6 years is cruel and unusual punishment, is thus not preserved for our review ( see, People v Cates, 104 A.D.2d 895; People v Oliver, 63 N.Y.2d 973; People v Drummond, 40 N.Y.2d 990, cert denied sub nom. New York v Luis J., 431 U.S. 908). In any event, there are no exceptional circumstances to support such a claim ( see, People v Jones, 39 N.Y.2d 694, 697; People v Broadie, 37 N.Y.2d 100, 112, cert denied 423 U.S. 950). We note that since defendant's moving papers did not make a prima facie showing of some compelling factor, consideration or circumstance clearly demonstrating that his prosecution and conviction would be unjust, there was no legal basis for dismissal of the indictment in the furtherance of justice, and it was not error for the court to deny defendant's motion to dismiss the indictment without having conducted a hearing (CPL 210.40, 210.45 Crim. Proc. [5] [a]; People v Schlessel, 104 A.D.2d 501).

We have examined defendant's remaining contentions and find them to be without merit. Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.


Summaries of

People v. Thomas

Appellate Division of the Supreme Court of New York, Second Department
Feb 19, 1985
108 A.D.2d 884 (N.Y. App. Div. 1985)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSEPH THOMAS…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 19, 1985

Citations

108 A.D.2d 884 (N.Y. App. Div. 1985)

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