| People v Miller |
| 2010 NY Slip Op 05426 [74 AD3d 1097] |
| June 15, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Phillip Miller, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), forrespondent.
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 toCPL 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) andcriminal 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, thedefendant is procedurally barred from raising this claim, as it was previously raised anddetermined on the defendant's direct appeal from the judgment of conviction (see People v Miller, 1 AD3d 613,614 [2003]), and, since the time of that determination, there has been no retroactively effectivechange in the law controlling the issue (see CPL 440.20 [2]).
The defendant contends that his sentence constituted cruel and unusual punishment inviolation of the Eighth Amendment to the United States Constitution and that it violated his rightto equal protection of the laws under the Fourteenth Amendment to the United StatesConstitution. The defendant's contentions are based on the fact that, while he received anaggregate sentence of 20 years imprisonment, one of his codefendants received a determinateterm of seven years imprisonment, and another was acquitted at trial.
A sentence imposed within the statutory limits ordinarily is not cruel and unusualpunishment in the constitutional sense, absent exceptional circumstances (see People vJones, 39 NY2d 694, 697 [1976]; People v Travis, 67 AD3d 1034, 1035 [2009]; People vBrathwaite, 263 AD2d 89, 92 [2000]). Here, the defendant failed to demonstrate theexistence of exceptional circumstances that would render his sentence, which was within thestatutory limits, cruel and unusual punishment (see People v Clerge, 69 AD3d 955, 955 [2010]; People v Rogers, 63 AD3d 1631[2009]; People v Cruz, 54 AD3d962, 963 [2008]; People vReese, 31 AD3d 582, 583 [2006]).[*2]
In evaluating claims under the Fourteenth Amendment,the law "requires 'that equal protection and security should be given to all under likecircumstances . . . and that in the administration of criminal justice, no different orhigher punishment should be imposed upon one than such as is prescribed to all for like offenses'" (People v Jones, 39 NY2d at 697, quoting Barbier v Connolly, 113 US 27, 31[1885]). However, " '[e]qual protection does not require identity of treatment. It only requiresthat classification rest on real and not feigned differences, that the distinction have somerelevance to the purpose for which the classification is made, and that the different treatments benot so disparate, relative to the difference in classification, as to be wholly arbitrary' "(People v Drayton, 47 AD2d 952, 953 [1975], affd 39 NY2d 580 [1976], quotingWalters v St. Louis, 347 US 231, 237 [1954]). Here, the defendant failed to demonstratethat the sentence imposed violated his Fourteenth Amendment right to equal protection of thelaws. Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.