Opinion
November 7, 1984
Appeal from the Oneida County Court, Darrigrand, J.
Present — Dillon, P.J., Green, O'Donnell, Moule and Schnepp, JJ.
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 A.D.2d 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 N.Y.2d 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 A.D.2d 684), and not simply to arouse the emotions of the jury ( People v Pobliner, 32 N.Y.2d 356, cert den. 416 U.S. 905; People v Arca, 72 A.D.2d 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 A.D.2d 868; Matter of Robert S.T., 86 A.D.2d 748). We have examined defendant's remaining contentions and find them to be without merit.