Opinion
February 19, 1985
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Judgment affirmed.
Defendant's conviction arises from events which occurred while he was incarcerated in the Suffolk County Jail serving a one-year sentence for burglary in the third degree. We have reviewed the record and conclude that viewed in a light most favorable to the prosecution the evidence was sufficient to establish that the defendant extorted money from two fellow inmates by instilling in them a fear that they would be physically harmed if they did not pay him ( People v Contes, 60 N.Y.2d 620; Penal Law § 155.40; see, People v Dioguardi, 8 N.Y.2d 260). Defendant was sentenced as a second felony offender to the minimum sentence authorized by Penal Law § 70.06. At sentencing, defendant did not controvert the predicate felony conviction and, clearly aware of the statutory sentencing range, urged the court to be as lenient as possible. Defendant's claim, raised for the first time on appeal, that the sentencing statute is unconstitutional as applied to him and that under the circumstances the mandatory minimum authorized sentence of 3 to 6 years is cruel and unusual punishment, is thus not preserved for our review ( see, People v Cates, 104 A.D.2d 895; People v Oliver, 63 N.Y.2d 973; People v Drummond, 40 N.Y.2d 990, cert denied sub nom. New York v Luis J., 431 U.S. 908). In any event, there are no exceptional circumstances to support such a claim ( see, People v Jones, 39 N.Y.2d 694, 697; People v Broadie, 37 N.Y.2d 100, 112, cert denied 423 U.S. 950). We note that since defendant's moving papers did not make a prima facie showing of some compelling factor, consideration or circumstance clearly demonstrating that his prosecution and conviction would be unjust, there was no legal basis for dismissal of the indictment in the furtherance of justice, and it was not error for the court to deny defendant's motion to dismiss the indictment without having conducted a hearing (CPL 210.40, 210.45 Crim. Proc. [5] [a]; People v Schlessel, 104 A.D.2d 501).
We have examined defendant's remaining contentions and find them to be without merit. Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.