| People v Taylor |
| 2016 NY Slip Op 00845 [136 AD3d 1331] |
| February 5, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMyles D. Taylor, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Michael L. D'Amico, J.),rendered April 28, 2014. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of murder in the second degree (Penal Law § 125.25 [1]). We rejectdefendant's contention that he did not knowingly and intelligently waive his right to bepresent at sidebar conferences during jury selection (see People v Antommarchi,80 NY2d 247, 250 [1992], rearg denied 81 NY2d 759 [1992]). Defendant'sAntommarchi waiver was made explicitly by and through his attorney (see People v Velasquez, 1NY3d 44, 47-50 [2003]; People v Keen, 94 NY2d 533, 538-539 [2000]), inopen court while defendant was present, and after the court "had articulated thesubstance of the Antommarchi right" (Keen, 94 NY2d at 538-539). To theextent that defendant contends that defense counsel failed to adequately explain thewaiver to him or to obtain his consent to the waiver, we conclude that those contentionsare based on matters outside of the record on appeal and are therefore not reviewable ondirect appeal (see People vBalenger, 70 AD3d 1318, 1318 [2010], lv denied 14 NY3d 885[2010]).
Inasmuch as defendant made only a general motion for a trial order of dismissal, hefailed to preserve for our review his challenge to the legal sufficiency of the evidence(see People v Gray, 86 NY2d 10, 19 [1995]). In any event, we conclude thatdefendant's challenge lacks merit (see generally People v Bleakley, 69 NY2d 490,495 [1987]). Moreover, viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495). We rejectdefendant's further contention that the sentence imposed by the court constitutes crueland unusual punishment. "Regardless of its severity, a sentence of imprisonment which iswithin the limits of a valid statute ordinarily is not a cruel and unusual punishment in theconstitutional sense" (People v Jones, 39 NY2d 694, 697 [1976]). Here, thesentence imposed by the court, i.e., an indeterminate term of imprisonment of 13 years tolife, is less than the maximum possible sentence (see Penal Law§ 70.05 [1], [2] [a]; [3] [a]). Moreover, although defendant was a juvenileat the time he committed the crime, we conclude that the sentence is not "grosslydisproportionate" to the crime, and it therefore does not violate the prohibitions againstcruel and unusual punishment under the State and Federal Constitutions (People vThompson, 83 NY2d 477, 479 [1994]; see People v Broadie, 37 NY2d 100,111 [1975], cert denied 423 US 950 [1975]). Finally, the sentence is not undulyharsh or severe (see CPL 470.15 [6] [b]). Present—Smith, J.P., Peradotto,Carni, Lindley and Whalen, JJ.