Ephraim Savitt, for appellant.
L. Haber, for respondent.
August 2011, defendant, an off-duty New York City police
officer, raped, sodomized and sexually assaulted a
25-year-old school teacher in a residential courtyard, while
threatening her with his loaded, police-issued weapon.
Defendant was convicted, upon a jury verdict, of three counts
of predatory sexual assault and three counts of criminal
sexual act in the first degree. He was sentenced to a term of
25 years in prison followed by 20 years of post-release
supervision on each of the three counts of criminal sexual
act and on each corresponding count of predatory sexual
assault. The sentence imposed for each of the three criminal
sexual acts was run concurrently to the sentence for the
corresponding predatory sexual assault, and the three
"pairs" of sentences were run consecutively to each
other, yielding an aggregate term of 75 years to life.
Appellate Division affirmed the judgment (126 A.D.3d 618');">126 A.D.3d 618 [1st
Dept 2015]), concluding that the sentencing court lawfully
imposed consecutive sentences for defendant's three
predatory sexual assault convictions. The Appellate Division
determined that although defendant's convictions on three
counts of predatory sexual assault involved a single
transaction and shared the dangerous instrument element,
consecutive sentences were permissible because the three
criminal sexual acts were separate and distinct. Furthermore,
as relevant to this appeal, the court held, citing People
v Ingram (67 N.Y.2d 897, 899 ), that defendant
failed to preserve his claim that his aggregate sentence was
unconstitutionally excessive under the Eighth Amendment of
the United States Constitution. The court declined to review
the constitutional claim in the interest of justice and
perceived no basis for reducing the sentence in the interest
defendant renews his argument that his aggregate sentence
violates the Eighth Amendment of the United States
Constitution. Additionally, for the first time in any court,
he contends that his sentence violates Article I, Section 5
of the New York Constitution.
failed to preserve for review his claim that the sentence
imposed by the court was "cruel and unusual."
Although defendant generally objected to the length of the
sentence before the sentencing court, arguing that the
sentence was draconian, he did not alert the court to his
constitutional argument . Thus, the sentencing court was
never given an opportunity to address any of the
constitutional challenges that defendant now lodges with this
Court. Accordingly, defendant's "claim [ ] that his
sentence constituted cruel and inhuman punishment [ ] is not
properly before us" (Ingram, 67 N.Y.2d at 699;
see also United States v Rivera, 546 F.3d 245, 254
[2d Cir 2008]["(t)here is no reason why (the
defendant's) constitutional challenges could not have
been raised below, where he had ample opportunity to raise
them and where the district court would have had the
opportunity to address them"][internal citation and
quotation marks omitted]). Defendant's attempt to fit
himself within the narrow exceptions to the preservation rule
described by this Court in People v Fuller (57
N.Y.2d 152 ) and People v Morse (62 N.Y.2d 205');">62 N.Y.2d 205
) is unavailing. Fuller involved the
court's abdication of its responsibility to fix the
amount and terms of restitution, and the "essential
nature" of the right to be sentenced as provided by law
(id. at 156). And, in Morse, we considered
a court's statutory power to impose an enhanced sentence.
Neither of those cases involved a claim that a sentence
constituted cruel and unusual punishment. In fact, we
indicated in Ingram, citing to both Morse
and Fuller, that with respect to the rules of
preservation, we were distinguishing between Eighth Amendment
claims on the one hand, and challenges to the fundamental
sentencing power of the trial court on the other
(Ingram, 67 N.Y.2d at 899). Furthermore, the narrow
exception to the preservation rule, where the illegality of a
sentence can readily be discerned from the trial record, is
inapplicable here (see People v Santiago, 22 N.Y.3d
900, 903 ; People v Nieves, 2 N.Y.3d 310, 316
). Accordingly, the order of the Appellate Division
should be affirmed.
Judge DiFiore and Judges Rivera, Stein, Fahey and Garcia
concur. Judge Wilson took no part.
 The jury was deadlocked on the two counts
of rape in the first degree and two corresponding counts of
predatory sexual assault, and defendant subsequently pleaded
guilty to all four of those counts. Pursuant to the plea
agreement, the sentencing Judge imposed an aggregate prison
term of 10 years to life followed by 20 years'
post-release supervision on each of the two rape counts, and
10 years to life on each of the two remaining predatory
sexual assault counts, which he ordered to run concurrently
to the aggregate sentence previously imposed.
 Defendant's submission to this Court
of sentencing statistics are irrelevant as they were not
presented to ...