People v. Ferris — 105 A.D.2d 1136

Majority

p. 1136

The People of the State of New York, Respondent, v Harvey S. Ferris, Appellant.

Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment entered upon a jury verdict convicting him of second degree murder. The conviction arises from defendant’s stabbing of his newly born child. At trial, defendant relied upon the affirmative defense that he was not responsible for his actions due to mental disease or defect. We find that the court’s charge to the jury adequately explained the law applicable to this defense (see People v Buthy, 38 AD2d 10 , 14). In any event, defense counsel raised no objections to the charge and therefore failed to preserve this issue for review (CPL 470.05, subd 2); People v Nuccie, 57 NY2d 818 ). The court did not abuse its discretion in admitting black and white photographs of the decedent. The photographs were admitted to aid in the explanation of medical testimony (People v Mosher, 81 AD2d 684 ), and not simply to

p. 1137

arouse the emotions of the jury (People v Pobliner, 32 NY2d 356 , cert den 416 US 905 ; People v Arca, 72 AD2d 205 ). Defendant raises, for the first time on appeal, a constitutional challenge to CPL 300.10 (subd 3). Inasmuch as the challenge was not raised below and the Attorney-General was not notified, the issue has not been preserved for review (Executive Law, § 71; Matter of Tonya Louise M., 91 AD2d 868 ; Matter of Robert S. T., 86 AD2d 748 ). We have examined defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Oneida County Court, Darrigrand, J. — murder, second degree.) Present — Dillon, P. J., Green, O’Donnell, Moule and Schnepp, JJ.

Cases cited

People v. Buthy 38 AD2d 10 N.Y. App. Div. 1971-12-09 at 14 p. 1136
People v. Nuccie 57 NY2d 818 N.Y. 1982-10-07 p. 1136
People v. Pobliner 32 NY2d 356 N.Y. 1973-05-04 p. 1137
People v. Arca 72 AD2d 205 N.Y. App. Div. 1980-01-24 p. 1137

Statutes and regulations cited

Executive Law p. 1137