Opinion
1999-09626.
Decided February 23, 2004.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Lefkowitz, J.), rendered September 9, 1999, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence.
Robert C. Mitchell, Riverhead, N.Y. (Robert B. Kenney of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Marcia R. Kucera of counsel; Abbey Lisbon on the brief), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, THOMAS A. ADAMS and SANDRA L. TOWNES, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed.
There was no violation of the well-settled rule that a criminal defendant has a constitutional and statutory right to be present at all material stages of trial ( see CPL 260.20, 310.30; People v. Twyman, 208 A.D.2d 576).
The defendant failed to preserve for appellate review his present contention that the court's dismissal of a sworn juror denied him the right to be tried by a jury in whose selection he had a voice ( see CPL 470.05). In any event, under the circumstances, the court properly found that the juror was grossly unqualified to serve ( see CPL 270.35; People v. Payton, 279 A.D.2d 483).
The defendant failed to preserve for appellate review his contention concerning the court's charge on justification ( see CPL 470.05). In any event, the court properly charged the jury that if it found that the defendant acted in self-defense, it could not find him guilty of depraved indifference murder.
The defendant's contention that Penal Law § 125.25(2) is unconstitutionally vague was not preserved for appellate review ( see People v. Lambert, 125 A.D.2d 495, 497). In any event, the contention is without merit ( see People v. Sanchez, 98 N.Y.2d 373, 380; People v. Register, 60 N.Y.2d 270, 276, cert denied 466 U.S. 953).
The defendant's claim that the People failed to establish by legally sufficient evidence the element of depraved indifference ( see CPL 470.05; People v. Finger, 95 N.Y.2d 894, 895; Penal Law § 125.25) is unpreserved for appellate review. In any event, the evidence, viewed in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620), established by legally sufficient evidence that the defendant acted with depraved indifference to human life ( see People v. Sanchez, 98 N.Y.2d 373, 378; People v. Elkady, 287 A.D.2d 518; People v. Smith, 255 A.D.2d 404, 405; People v. Dellemand, 205 A.D.2d 551, 552). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see CPL 470.15).
The sentence imposed was not excessive ( see People v. Suitte, 90 A.D.2d 80).
ALTMAN, J.P., KRAUSMAN, ADAMS and TOWNES, JJ., concur.