        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1302
KA 14-00841
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MYLES D. TAYLOR, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SHERRY A. CHASE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     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, of murder in the second degree.

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

     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 NY2d 247, 250,
rearg denied 81 NY2d 759). Defendant’s Antommarchi waiver was made
explicitly by and through his attorney (see People v Velasquez, 1 NY3d
44, 47-50; People v Keen, 94 NY2d 533, 538-539), in open court while
defendant was present, and after the court “had articulated the
substance of the Antommarchi right” (Keen, 94 NY2d at 538-539). 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 AD3d 1318, 1318, lv denied 14
NY3d 885).

     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 NY2d
10, 19). In any event, we conclude that defendant’s challenge lacks
merit (see generally People v Bleakley, 69 NY2d 490, 495). Moreover,
viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see
                                 -2-                         1302
                                                        KA 14-00841

generally Bleakley, 69 NY2d at 495). 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 NY2d 694, 697). 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 §
70.05 [1], [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 NY2d 477, 479; see People v Broadie, 37 NY2d 100, 111,
cert denied 423 US 950). Finally, the sentence is not unduly harsh or
severe (see CPL 470.15 [6] [b]).




Entered:   February 5, 2016                    Frances E. Cafarell
                                               Clerk of the Court
