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PEOPLE v. SMITH

193 Misc.2d 538 (2002)

753 N.Y.S.2d 809

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. ROBERT L. SMITH, Defendant.

Supreme Court, Erie County.

October 30, 2002.

Attorney(s) appearing for the Case

James Harrington and Kevin M. Doyle, Capital Defender (William EASTON and PATRICIA Warth of counsel), for defendant.

Frank J. Clark, III, District Attorney (Frank A. Sedita, III, and Michael J. Flaherty, Jr., of counsel), for plaintiff.

OPINION OF THE COURT

RONALD H. TILLS, J.

By application dated July 9, 2002, defendant seeks an order of this court (1) declaring CPL 400.27 (12) unconstitutional (a) on its face, (b) as applied to this defendant because, with regard to defendants who may be mentally retarded, the provision allows a judge, and not a jury, to make findings of fact necessary to sentence the defendant to death, and (c) as applied...

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