Ill issue in New York

2000A defendant who claims that a sentence constitutes cruel and unusual punishment may do so on the grounds that the sentence is facially invalid or that the sentence is invalid “as applied” to him or her (see, People v Thompson, 83 NY2d 477, 479 ; People v Jones, 39 NY2d 694, 696 ; People v Broadie, 37 NY2d 100 , cert denied 423 US 950 ).

2000A defendant who claims that a sentence constitutes cruel and unusual punishment may do so on the grounds that the sentence is facially invalid or that the sentence is invalid “as applied” to him or her (see, People v Thompson, 83 NY2d 477, 479 ; People v Jones, 39 NY2d 694, 696 ; People v Broadie, 37 NY2d 100 , cert denied 423 US 950 ).

2000The essential facts underlying this lawsuit are set forth in our prior decision ( 263 AD2d 724 ).

2000A defendant who claims that a sentence constitutes cruel and unusual punishment may do so on the grounds that the sentence is facially invalid or that the sentence is invalid “as applied” to him or her (see, People v Thompson, 83 NY2d 477, 479 ; People v Jones, 39 NY2d 694, 696 ; People v Broadie, 37 NY2d 100 , cert denied 423 US 950 ).

2000A defendant who claims that a sentence constitutes cruel and unusual punishment may do so on the grounds that the sentence is facially invalid or that the sentence is invalid “as applied” to him or her (see, People v Thompson, 83 NY2d 477, 479 ; People v Jones, 39 NY2d 694, 696 ; People v Broadie, 37 NY2d 100 , cert denied 423 US 950 ).

1993Ill The error cannot be said to be harmless (People v Crimmins, 36 NY2d 230, 237 ).

1991By representing himself, a defendant is necessarily foregoing the benefits associated with the right to counsel (see, People v McIntyre, 36 NY2d 10, 17 ; Faretta v California, 422 US 806 ).

1991By representing himself, a defendant is necessarily foregoing the benefits associated with the right to counsel (see, People v McIntyre, 36 NY2d 10, 17 ; Faretta v California, 422 US 806 ).

1990Ill The issue therefore, is whether application of the Supreme Court’s holding in Smalis v Pennsylvania (supra) that a dismissal for legal insufficiency is an acquittal barring any further fact-finding proceedings is dependent upon whether the order of dismissal was formally entered.

1979While there may be cases in which the withdrawal, disability or incompetence of the attorney provided by a municipality requires the employment of a substitute attorney (see, e.g., Cahn v Town of Huntington, 29 NY2d 451 [disability]), a municipal official for whom counsel has been provided generally has no authority on his own judgment and without the approval of the municipality to make a substitution at its expense (see People ex rel.

1977The States may concurrently regulate areas affected by Federal law under the commerce clause, if the State regulation is not incompatible with the Federal regulation (see, e.g., Automobile Workers v Wisconsin Bd., 336 US 245, 254 ; United Workers v Laburnum Corp., 347 US 656 ; Taggart v Weinacker’s, Inc., 397 US 223, 227 ).

1977The States may concurrently regulate areas affected by Federal law under the commerce clause, if the State regulation is not incompatible with the Federal regulation (see, e.g., Automobile Workers v Wisconsin Bd., 336 US 245, 254 ; United Workers v Laburnum Corp., 347 US 656 ; Taggart v Weinacker’s, Inc., 397 US 223, 227 ).

1977The States may concurrently regulate areas affected by Federal law under the commerce clause, if the State regulation is not incompatible with the Federal regulation (see, e.g., Automobile Workers v Wisconsin Bd., 336 US 245, 254 ; United Workers v Laburnum Corp., 347 US 656 ; Taggart v Weinacker’s, Inc., 397 US 223, 227 ).

1958To repeat, the “ sentence is the judgment in a criminal action ”.' In this regard it is interesting to note the decision in People v. Sullivan (3 N Y 2d 196, 198) involving a coram nobis application with an alleged failure of compliance with said section 480, wherein the Court of Appeals held: “ Where the alleged basic legal error is evident and does not affect' the validity of the judgment of conviction, but only the validity of the sentence, the defendant is limited to the post-conviction remedies of appeal, motion in arrest of judgment, motion to withdraw plea or habeas corpus, according to

1958To repeat, the “ sentence is the judgment in a criminal action ”.' In this regard it is interesting to note the decision in People v. Sullivan (3 N Y 2d 196, 198) involving a coram nobis application with an alleged failure of compliance with said section 480, wherein the Court of Appeals held: “ Where the alleged basic legal error is evident and does not affect' the validity of the judgment of conviction, but only the validity of the sentence, the defendant is limited to the post-conviction remedies of appeal, motion in arrest of judgment, motion to withdraw plea or habeas corpus, according to