
    The People of the State of New York, Respondent, v Keith Hart, Appellant.
   Casey, J.

Appeal from a judgment of the Supreme Court (Crew, III, J.), rendered November. 25, 1985 in Chemung County, convicting defendant upon his plea of guilty of the crime of escape in the first degree.

Upon defendant’s plea of guilty to escape in the first degree as charged, he was sentenced as a second felony offender to an indeterminate prison term of 2 to 4 years. Although this sentence is the minimum that could be imposed in the circumstances, defendant, on this appeal, contends that the predicate felony offender statute, Penal Law § 70.06, is unconstitutional. We have already upheld the constitutionality of the statute (see, People v Saxbury, 95 AD2d 871).

As to defendant’s claim of excessiveness, it is noted that based on defendant’s voluntary plea as a second offender, no lesser sentence of imprisonment could be imposed. The judgment of conviction should be affirmed.

Judgment affirmed. Mahoney, P. J., Kane, Main, Casey and Mikoll, JJ., concur.  