The People of the State of New York, Respondent, v. Wanda Martinez, Appellant

The People of the State of New York, Respondent, v Wanda Martinez, Appellant. [595 NYS2d 39] [MAJORITY] —Judgment, Supreme Court, New York County (Bernard Jackson, J.), rendered June 7, 1990, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing her as a predicate felony offender, to a term of AV2 to 9 years, unanimously modified, on the law, the facts and as a matter of discretion in the interest of justice, to the extent of reducing the sentence to 2 to 4 years, and otherwise affirmed. The defendant was sentenced to the statutory minimum by the sentencing court. While a sentence within statutory limits is ordinarily not a cruel and unusual punishment (People v Jones, 39 NY2d 694, 697), "in some rare case[s]” the statute can be unconstitutionally applied (People v Broadie, 37 NY2d 100, 119, cert denied 423 US 950). Although defendant received the minimum sentence permitted by the statute, we find that the statute was unconstitutionally applied and we reduce the sentence accordingly, to 2 to 4 years, to avoid cruel and unusual punishment in the circumstances (People v Skeffery, 188 AD2d 438). Concur — Murphy, P. J., Carro, Rosenberger and Ross, JJ.