Opinion
Argued September 4, 1991
Decided October 22, 1991
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Samuel J. Castellino, J.
Joseph J. Balok, Jr., Public Defender (John R. McGlenn of counsel), for appellant.
James T. Hayden, District Attorney, for respondent.
Order affirmed. The issues sought to be raised by defendant are not preserved for this Court's review and, therefore, the Court cannot consider the merits.
Concur: Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA. Judge HANCOCK, JR., dissents and votes to reverse, concluding that defendant preserved the constitutional issue whether the application of Penal Law §§ 40.15 and 25.00 unconstitutionally shifted the burden of proof to defendant, and that the trial court's charge to the jury failed to safeguard against the insanity affirmative defense statute impermissibly shifting to defendant the burden of disproving intent (see, People v Kohl, 72 N.Y.2d 191, 198-199).