Opinion
September 24, 1976
Appeal from the Cayuga Supreme Court.
Present — Marsh, P.J., Moule, Simons, Goldman and Witmer, JJ.
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 N.Y.2d 100). Relator's reliance upon our decision in People v Young ( 46 A.D.2d 202) is misplaced inasmuch as defendant in that case was sentenced under the nonmandatory sentence provisions of the former statute.