Opinion
December 8, 1986
Appeal from the County Court, Rockland County (Meehan, J.).
Ordered that the judgment is affirmed.
The sentence imposed upon the defendant as a second violent felony offender on his conviction of burglary in the second degree is the minimum permissible sentence (Penal Law § 70.04 [b]) and, therefore, may not be considered excessive. Nor does the record support a finding that the imposition of this sentence is unconstitutional as applied to this defendant (see, People v Kepple, 98 A.D.2d 783; see also, People v. Broadie, 37 N.Y.2d 100).
Finally, the denial of the defendant's motion pursuant to CPL 440.10 to set aside his prior violent conviction is not reviewable on the appeal from the judgment in this case. Mangano, J.P., Brown, Rubin and Eiber, JJ., concur.