People ex rel. Austin v. Henderson

Judgment unanimously affirmed. Memorandum: Relator is presently incarcerated in Auburn Correctional Facility pursuant to an indeterminate sentence of three years to life imprisonment for the crime of criminally selling a controlled substance, third degree. In this habeas corpus proceeding he contends that the sentence is excessive and cruel and inhuman because he should have been sentenced to a drug rehabilitation center. The sentence is proper under the mandatory provisions of the statute (Penal Law, § 70.00, subd 3, par [a]) and the statute is constitutional (People v Broadie, 37 NY2d 100). Relator’s reliance upon our decision in People v Young (46 AD2d 202) is misplaced inasmuch as defendant in that case was sentenced under the nonmandatory sentence provisions of the former statute. (Appeal from judgment of Cayuga Supreme Court,—habeas corpus.) Present—Marsh, P. J., Moule, Simons, Goldman and Witmer, JJ.