Opinion
December 29, 1992
Appeal from the Supreme Court, New York County (Carol Berkman, J.).
While a sentence within the statutory limits ordinarily is not a cruel and unusual punishment (People v Jones, 39 N.Y.2d 694, 697), "in some rare case[s]" the statute can be unconstitutionally applied (People v Broadie, 37 N.Y.2d 100, 119, cert denied 423 U.S. 950). Noting the disparity of treatment arising from co-defendant's acquittal at a separate trial based upon testimony that exculpated both, and lack of criminal record, age, poor health, and family circumstances, we reduce the sentence to 5 years to life to avoid the sentence being "cruel and unusual" in the circumstances (NY Const, art I, § 5; see, People v Andrews, 176 A.D.2d 530, 531-532, lv denied 79 N.Y.2d 918).
We have reviewed defendant's argument that the trial court abused its discretion in not permitting defense counsel to recall a prosecution witness after cross-examination of the witness had already been concluded, and find it to be without merit (see, People v Ventura, 35 N.Y.2d 654).
Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Kassal, JJ.