People v. Taylor

Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.

Opinion

MEMORANDUM:

Defendant appeals from a judgment convicting him upon a jury verdict of

murder in the second degree (Penal Law § 125.25 1 ). We reject defendant's contention that he did not knowingly and intelligently waive his right to be present at sidebar conferences during jury selection (see People v. Antommarchi, 80 N.Y.2d 247, 250, 590 N.Y.S.2d 33, 604 N.E.2d 95, rearg. denied 81 N.Y.2d 759, 594 N.Y.S.2d 720, 610 N.E.2d 393). Defendant's Antommarchi waiver was made explicitly by and through his attorney (see People v. Velasquez, 1 N.Y.3d 44, 47–50, 769 N.Y.S.2d 156, 801 N.E.2d 376; People v. Keen, 94 N.Y.2d 533, 538–539, 707 N.Y.S.2d 380, 728 N.E.2d 979), in open court while defendant was present, and after the court “had articulated the substance of the Antommarchi right” (Keen, 94 N.Y.2d at 538–539, 707 N.Y.S.2d 380, 728 N.E.2d 979). To the extent that defendant contends that defense counsel failed to adequately explain the waiver to him or to obtain his consent to the waiver, we conclude that those contentions are based on matters outside of the record on appeal and are therefore not reviewable on direct appeal (see People v. Balenger, 70 A.D.3d 1318, 1318, 895 N.Y.S.2d 623, lv. denied 14 N.Y.3d 885, 903 N.Y.S.2d 773, 929 N.E.2d 1008).

Inasmuch as defendant made only a general motion for a trial order of dismissal, he failed to preserve for our review his challenge to the legal sufficiency of the evidence (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we conclude that defendant's challenge lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Moreover, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). We reject defendant's further contention that the sentence imposed by the court constitutes cruel and unusual punishment. “Regardless of its severity, a sentence of imprisonment which is within the limits of a valid statute ordinarily is not a cruel and unusual punishment in the constitutional sense” (People v. Jones, 39 N.Y.2d 694, 697, 385 N.Y.S.2d 525, 350 N.E.2d 913). Here, the sentence imposed by the court, i.e., an indeterminate term of imprisonment of 13 years to life, is less than the maximum possible sentence (see Penal Law § 70.051, 2[a]; 3 [a] ). Moreover, although defendant was a juvenile at the time he committed the crime, we conclude that the sentence is not “grossly disproportionate” to the crime, and it therefore does not violate the prohibitions against cruel and unusual punishment under the State and Federal Constitutions (People v. Thompson, 83 N.Y.2d 477, 479, 611 N.Y.S.2d 470, 633 N.E.2d 1074; see People v. Broadie, 37 N.Y.2d 100, 111, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287). Finally, the sentence is not unduly harsh or severe (see CPL 470.156[b] ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.