As a result of a plea bargain, defendant pleaded guilty to the first count of a two-count indictment with the understanding that he would be sentenced as a second felony offender to an indeterminate prison term of 1 1/2 to 3 years. The only issue raised on this appeal is defendant's challenge to the constitutionality of the second felony offender provision contained in Penal Law ยง 70.06. Although we note that defendant did not preserve this issue on the record, we do address ourselves to the contentions raised on this appeal. These same contentions have been before this court on numerous occasions and we have repeatedly upheld the constitutionality of the second felony offender statute ( People v. Sibley, 54 A.D.2d 772; People v. Galpin, 49 A.D.2d 654; People v. Brown, 46 A.D.2d 255). Judgment affirmed. Mahoney, P.J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.
"[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long" ( Woodson v North Carolina, 428 U.S. 280, 305; Runnel v Estelle, 445 U.S. 263, 272). Individualized sentencing based on a consideration of the character and record of the accused is indispensable where the penalty of death may be imposed, but is not a constitutional imperative in noncapital cases ( Woodson v North Carolina, supra, p. 304; People v Cates, 104 A.D.2d 895; see People v Broadie, 45 A.D.2d 649, 652, aff'd 37 N.Y.2d 100, 117, cert. den. 423 U.S. 950). In People v Bryant ( 47 A.D.2d 51, 61-62) we rejected the contention that the mandatory minimum sentencing provisions of section 70.06 Penal of the Penal Law proscribes such inflexibility in sentencing as to constitute cruel and unusual punishment within the meaning of the Eighth Amendment of the Federal Constitution (see, also, People v Galpin, 49 A.D.2d 654; People v Brown, 46 A.D.2d 255). The reasoning in Bryant is equally applicable to a challenge under the parallel provision of section 5 of article I of the Constitution of the State of New York. We have examined the other arguments raised by defendant and find them to be without merit.