Reynolds, J.
Defendant was sentenced to the minimum permissible sentence as a second felony offender (Penal Law, § 70.06) and thus the sentence imposed cannot be considered unduly harsh or excessive so as to constitute an abuse of discretion (see, e.g., People v. Dittmar, 41 A D 2d 788). We find no merit in defendant’s contention that section 70.06 of the Penal Law is unconstitutional in that its minimum sentence requirement constitutes a harsh and excessive sentence and thus cruel
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and unusual punishment because it imposes an increased sentence for second and habitual offenders and removes from the court and probation department any discretion in imposing a minimum sentence (e.g., McDonald v. Massachusetts, 180 U. S. 311; Kendrick v. United States, 238 F. 2d 34; People v. Wilson, 13 N Y 2d 277). There is a rational basis to impose a heavier penalty on multiple felony offenders and all persons alike are treated equally.
The judgment should be affirmed..
Herlihy, P. J., Greenblott, Cooke and Main, JJ., concur.
Judgment affirmed.