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People v. Parker2/7/2003
ant was convicted after trial and sentenced to death before the Court issued its decision in Hynes. The Court in Harris thus applied Hynes by vacating the sentence of death and remitting the matter to Supreme Court for the imposition of a sentence of life imprisonment without parole pursuant to Penal Law §§ 60.06 and 70.00 (5). The Court did not allow for the sentencing option of 20 to 25 years to life imprisonment, an option available only to those defendants who plead guilty (see CPL 400.27 ; Penal Law § 70.00 ; ).
Here, as in Harris, defendant was convicted and sentenced before the Court of Appeals issued its decision in Hynes. Unlike in Harris, however, defendant herein was not affected by the constitutional infirmity of the statutory provisions at issue in Hynes and Harris. "[Defendant] risked death, but suffered no detriment as a result of (*6)that risk. Consequently, he cannot now raise the issue as to what might have occurred had the jury recommended death, or what might have happened had he been dissuaded from choosing a jury trial" (Parker v United States, 400 F2d 248, 252, cert denied 393 US 1097). The sentence of life imprisonment without parole may also be imposed upon a defendant who pleads guilty, and therefore the imposition of that sentence has not unconstitutionally penalized the exercise of defendant's Fifth and Sixth Amendment rights (see Corbitt, 439 US at 216-221; cf. Jackson, 390 US at 581-583; Harris, 98 NY2d at 496; Robtoy v Kincheloe, 871 F2d 1478, 1481, cert denied sub nom. Robtoy v Callahan, 494 US 1031, 1061, reh denied 495 US 966).
We have examined defendant's remaining contentions concerning the death penalty statutes and conclude that they lack merit.
III. Issues Related to the Jury
A. Defendant's Challenges for Cause
Defendant contends that the court erred in denying several of his challenges for cause to prospective jurors. Four of those prospective jurors, although initially expressing "conscientious opinions either against or in favor of [the death penalty] as to preclude [them] from rendering an impartial verdict or from properly exercising the discretion conferred upon [them]" (CPL 270.20 ), nevertheless made clear that they would be able to follow their oaths to act impartially and to exercise the discretion conferred upon them in the determination of a sentence pursuant to CPL 400.27 (see Harris, 98 NY2d at 484-485). Upon examining the individual statements of prospective juror H. in context and as a whole, we conclude that she gave an unequivocal assurance of impartiality (see People v Chambers, 97 NY2d 417, 419).
Defendant's challenges for cause pursuant to CPL 270.20 (1) (b) with respect to two prospective jurors based on their alleged unwillingness to consider certain mitigating factors is not preserved for our review because defendant did not raise the issue of a correlation between mitigating factors and the guilt phase of the trial (see Harris, 98 NY2d at 486-487). Furthermore, defendant failed to establish that those prospective jurors should have been dismissed for cause pursuant to CPL 270.20 (1) (f) because he failed to establish any correlation between their views on mitigating factors and their views on the death penalty or "[their] ability to exercise sentencing discretion conferred by statute" (Harris, 98 NY2d at 487).
(*7) We agree with defendant that two prospective jurors initially seemed confused about the burdens of proof. However, upon examining the statements of those prospective jurors in their entirety (see People v Johnson, 94 NY2d 600, 615-616), and giving due deference to the court's determination (see People v Hagenbuch, 267 AD2d 948, lv denied 95 N
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