People v. Russell

270 A.D.2d 884, 705 N.Y.S.2d 921, 2000 N.Y. App. Div. LEXIS 3366

Opinion

—Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment of County Court convicting him upon his plea of guilty of murder in the first degree (Penal Law § 125.27 [1] [a] [viii]; [b]), two counts of murder in the second degree (Penal Law § 125.25 [1]), and conspiracy in the fourth degree (Penal Law § 105.10 [1]). Defendant was sentenced to concurrent terms, the highest being life imprisonment without parole.

On appeal, defendant contends that CPL 400.27 (1) is unconstitutional because it provides for a full sentencing hearing in capital cases, but not in cases where a defendant has been convicted of first degree murder but against whom the People either have not filed or have withdrawn a notice of intent to seek the death penalty. “Because defendant never raised that constitutional challenge before the sentencing court, he failed to preserve it for our review” (People v Maisonet, 265 AD2d 835). Given the brutal nature of this double murder, we decline to exercise our power to modify the sentence as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [b]). (Appeal from Judgment of Genesee County Court, Griffith, J.— Murder, 1st Degree.) Present — Green, J. P., Pine, Scudder and Lawton, JJ.