Opinion
October 1, 1999
Appeal from Judgment of Erie County Court, D'Amico, J. — Murder, 1st Degree.
Judgment unanimously affirmed.
Memorandum:
Defendant's conviction is supported by legally sufficient evidence and is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). We reject defendant's contention that County Court committed reversible error when it discharged a sworn juror. The record establishes that defendant consented to that discharge (see, People v. Carbonaro, 162 A.D.2d 459, lv denied 76 N.Y.2d 891; see also, People v. Joy, 206 A.D.2d 440, lv denied 84 N.Y.2d 869; People v. Heredia, 196 A.D.2d 885, 886, lv denied 82 N.Y.2d 896).
Defendant further contends that the sentence of life imprisonment without parole pursuant to Penal Law §§ 60.06 and 70.00 (3) and CPL 400.27 (1) violates the Due Process and Equal Protection Clauses of the State and Federal Constitutions. Because defendant never raised that constitutional challenge before the sentencing court, he failed to preserve it for our review (see, People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914; People v. Poole, 171 A.D.2d 1041, lv denied 78 N.Y.2d 972). Finally, given the heinous nature of defendant's crimes, the sentence is neither unduly harsh nor severe.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., HURLBUTT AND CALLAHAN, JJ.