
    [786 NE2d 21, 756 NYS2d 122]
    The People of the State of New York, Respondent, v Kristian Hansen, Appellant.
    Argued January 9, 2003;
    decided February 13, 2003
    
      POINTS OF COUNSEL
    
      Paul J. Connolly, Albany, for appellant.
    I. Reversal is required, and the indictment must be dismissed, because County Court erroneously denied Mr. Hansen’s pretrial motion to dismiss the indictment based upon defects in the grand jury proceeding; at the least, County Court should have dismissed counts I and II and the conviction on count I must be vacated. (People v Pelchat, 62 NY2d 97; People v Alexander, 136 AD2d 332; People v Talley, 273 AD2d 883, 95 NY2d 893; People v Di Falco, 44 NY2d 482; People v Cwikla, 46 NY2d 434; People v Savvides, 1 NY2d 554; People v Sibadan, 240 AD2d 30; People v Gallman, 152 Misc 2d 1033; People v Corso, 129 Misc 2d 590, 135 AD2d 551; People v Batashure, 75 NY2d 306.) II. County Court committed reversible error in refusing to suppress Mr. Hansen’s statements and the evidence seized from the Davis residence. (People v Levan, 62 NY2d 139; People v Mathis, 132 AD2d 626; New York v Harris, 495 US 14, 77 NY2d 434; People v Dory, 59 NY2d 121; Payton v New York, 445 US 573; Wong Sun v United States, 371 US 471; California v Greenwood, 486 US 35; California v Ciraolo, 476 US 207; People v Wesley, 73 NY2d 351.) III. County Court committed reversible error by refusing to admit into evidence, for its truth, Melissa Davis’s admission to killing Mr. Cassaro. (People v Edwards, 47 NY2d 493; People v Seymour, 183 AD2d 35; People v Marks, 6 NY2d 67; People v Green, 183 AD2d 617; People v Toscano, 154 AD2d 314; People v Melendez, 55 NY2d 445; Chambers v Mississippi, 410 US 284; Washington v Texas, 388 US 14; People v Robinson, 89 NY2d 648; People v Gilmore, 66 NY2d 863.) IV. Due process and equal protection considerations require the sentencing procedures and criteria in CPL 400.27 to be applied to noncapital, first-degree murder defendants such as Mr. Hansen, and County Court’s failure to do so requires that Mr. Hansen’s conviction of first-degree murder be vacated and that charge dismissed. At the least, Mr. Hansen must be resentenced. (People v Bell, 172 Misc 2d 25; People v Felix, 58 NY2d 156; People v Perry, 36 NY2d 114; People v Rosello, 97 Misc 2d 963; People v Johnson, 171 Misc 2d 674; Matter of Walker v New York State Div. of Parole, 203 AD2d 757.) V. The sentencing procedure on the first-degree murder count deprived Mr. Hansen of equal protection of the laws, in that capital murder defendants are afforded a jury on the issue of whether their sentence should be life imprisonment without parole as opposed to an indeterminate sentence of no more than 25 years to life imprisonment, while that same issue is decided by a judge in the case of noncapital first-degree murder defendants such as Mr. Hansen. (People v Walker, 81 NY2d 661; People v Liberta, 64 NY2d 152; People v Parker, 41 NY2d 21; People v Owens, 184 Misc 2d 600; Harris v Alabama, 513 US 504.)
    
      Paul A. Clyne, District Attorney, Albany {Christopher D. Horn of counsel), for respondent.
    I. County Court correctly denied defendant’s motion to dismiss the indictment. (People v Lancaster, 69 NY2d 20; People v Mitchell, 82 NY2d 509; People v Wiemeier, 222 AD2d 972; People v Darrisaw, 206 AD2d 661; People v Bartolomeo, 126 AD2d 375, 70 NY2d 702; People v Gallman, 152 Misc 2d 1033; People v Holmes, 118 AD2d 869; People v Thompson, 108 AD2d 942; People v Rockwell, 97 AD2d 853; People v Landtiser, 222 AD2d 525.) II. County Court correctly denied defendant’s motion to suppress. (People v Prochilo, 41 NY2d 759; People v Oden, 36 NY2d 382; People v Burns, 281 AD2d 704; People v May, 263 AD2d 215, 94 NY2d 950; People v Robustelli, 77 AD2d 764; Mauceri v County of Suffolk, 234 AD2d 350; United States v Holland, 755 F2d 253, 471 US 1125; People v Rodriguez, 69 NY2d 159; People v Coppin, 202 AD2d 279; People v Siler, 197 AD2d 842; People v Hallman, 237 AD2d 17.) III. The statement at issue constituted inadmissible hearsay. (People v Carroll, 95 NY2d 375; People v Almonor, 93 NY2d 571; People v Vasquez, 88 NY2d 561; People v Edwards, 47 NY2d 493; People v Brown, 70 NY2d 513; People v Johnson, 277 AD2d 702; People v Ahmed, 66 NY2d 307; People v Luperon, 85 NY2d 71; Carter v State of New York, 284 AD2d 810; Williams v State of New York, 235 AD2d 776, 90 NY2d 806.) IV. Criminal Procedure Law § 400.27 does not violate defendant’s rights to due process and equal protection and, by its own express terms, has no application to a noncapital murder in the first degree defendant. (People v Tichenor, 89 NY2d 769, 522 US 918; People v Demperio, 86 NY2d 549; People v Davis, 43 NY2d 17, 435 US 998; People v P.J. Video, 68 NY2d 296; Harmelin v Michigan, 501 US 957; Sumner v Shuman, 483 US 66; Holman v Page, 95 F3d 481; People v Ahmed, 66 NY2d 307; People v Luperon, 85 NY2d 71; Green v United States, 365 US 301.) V. Defendant’s equal protection argument is unpreserved for review by this Court and, in any event, is without merit. (People v James, 75 NY2d 874; People v Ahmed, 
      66 NY2d 307; People v Luperon, 85 NY2d 71; People v Cooper, 88 NY2d 1056; People v Turriago, 90 NY2d 77; People v Voliten, 83 NY2d 192; People v Dancey, 57 NY2d 1033; People v Parker, 41 NY2d 21; People v Walker, 81 NY2d 661; Affronti v Crosson, 95 NY2d 713.)
    
      Office of the Appellate Defender, New York City CRichard M. Greenberg and Joseph M. Nursey of counsel), for New York State Defenders Association and another, amici curiae.
    The sentence of life imprisonment without parole was imposed in this case in violation of US Constitution Amendment XIV, and NY Constitution, article I, §§ 6, 11, where appellant was sentenced by the trial court alone under the provisions of Criminal Procedure Law § 400.27, which provides that a sentence of life imprisonment without parole can be imposed only by a jury against an accused person against whom the prosecution unsuccessfully sought the death penalty, but which denies that jury trial on whether the sentence of life without parole will be imposed to accused persons against whom the prosecution did not seek the death penalty. (Gardner v Florida, 430 US 349; Woodson v North Carolina, 428 US 280; Apprendi v New Jersey, 530 US 466; People v Mower, 97 NY2d 239; City of Cleburne, Tex. v Cleburne Living Ctr., 473 US 432; Romer v Evans, 517 US 620; Harper v Virginia Bd. of Elections, 383 US 663; Shapiro v Thompson, 394 US 618; Skinner v State of Oklahoma ex rel. Williamson, 316 US 535; Duncan v Louisiana, 391 US 145.)
    
      Eliot Spitzer, Attorney General, New York City (Daniel Smirlock, Robin A. Forshaw and Luke Martland of counsel), for Attorney General of the State of New York, amicus curiae.
    I. The New York sentencing scheme for noncapital first-degree murder satisfies due process. (United States v Lee, 818 F2d 1052, 484 US 956; Gardner v Florida, 430 US 349; People v Felix, 58 NY2d 156, 464 US 802; People v Perry, 36 NY2d 114; Townsend v Burke, 334 US 736; United States v Miller, 263 F3d 1; United States v Pugliese, 860 F2d 25, 489 US 1067; People v P.J. Video, 68 NY2d 296, 479 US 1091; People v Vilardi, 76 NY2d 67; People ex rel. Arcara v Cloud Books, 68 NY2d 553.) II. The New York sentencing scheme for noncapital first-degree murder does not violate equal protection. (People v James, 75 NY2d 874; People v Walker, 81 NY2d 661; People v Parker, 41 NY2d 21; People v Fraser, 96 NY2d 318, 533 US 951; Chapman v United States, 500 US 453; United States v Proyect, 989 F2d 84, 510 US 822; Gregg v Georgia, 428 US 153; Holland v Donnelly, 216 F Supp 2d 227.) III. The prosecutor had no obligation to inform the grand jury that defendant’s accomplice was cooperating. (United States v Williams, 504 US 36; United States v Page, 808 F2d 723, 482 US 918; People v Mitchell, 82 NY2d 509; People v Lancaster, 69 NY2d 20, 480 US 922; Brady v Maryland, 373 US 83; People v Adessa, 89 NY2d 677; People v Huston, 88 NY2d 400; People v Pelchat, 62 NY2d 97; People v Bartolomeo, 126 AD2d 375; People v Tolliver, 217 AD2d 978.)
   OPINION OF THE COURT

Wesley, J.

Defendant challenges New York’s sentencing procedures for noncapital first-degree murder (CPL 400.27 [1]) on due process grounds under the State and Federal Constitutions.

As discussed in detail by the Appellate Division, defendant was charged with multiple crimes committed in Albany. On April 28, 1995, David Goyette, a taxi driver, was robbed and beaten with a hammer while in his taxi. On August 1, 1996, Santo Cassaro, another taxi driver, was shot and killed while in his vehicle. A .25 caliber shell casing was found in the Cassaro vehicle. After an informant implicated defendant in both crimes, the police went to 499 Third Street, a two-family home where defendant was living with his then 15-year-old girlfriend, Melissa Davis.

Detectives located defendant, who willingly accompanied them to the police station. After arriving at the station, defendant remained uncuffed and was read his Miranda rights. During questioning, defendant made oral and written statements implicating himself in the robbery and homicide of Cassaro. Later, pursuant to a search warrant, police discovered a .25 caliber handgun in the attic of 499 Third Street and Cassaro’s wallet in a trash can at the curb in front of the home.

Defendant was indicted for murder in the first degree, three counts of murder in the second degree and robbery in the first degree, stemming from the incidents involving Cassaro. A sixth count — later severed — charged defendant with robbery in the first degree based upon the incident involving Goyette. Defendant was convicted by a jury of the offenses of murder in the first degree (Penal Law § 125.27 [1] [a] [vii]) and robbery in the first degree (Penal Law § 160.15 [2]). Defense counsel submitted a sentencing memorandum to the court contending that CPL 400.27, as it pertains to sentencing in a noncapital case, deprives defendant of his state and federal guarantees of due process of law in that it does not provide for a separate sentencing hearing at which a noncapital offender may submit evidence of mitigating factors. Notwithstanding defendant’s arguments, County Court sentenced defendant to life without parole for the murder and 12V2 to 25 years for the robbery.

On appeal defendant renewed his prior due process challenge. Defendant also asserted a new claim, maintaining he was deprived of equal protection of the law because, unlike capital defendants, noncapital murder defendants are not entitled to a sentencing jury. The Appellate Division affirmed defendant’s conviction, rejecting defendant’s due process claim. It also exercised its interest of justice review power, reached the merits of the equal protection challenge and found it unavailing. We affirm.

Discussion

In his sentencing memorandum defendant claimed CPL 400.27 violates his right to be free “from cruel and unusual punishment and [is] in violation of [his] right to Due Process” as it permits a trial court to proceed directly to sentencing without a mitigation hearing. Notwithstanding defendant’s reference to the Eighth Amendment, the pertinent focus of his challenge is the due process guarantees of the State and Federal Constitutions.

In Harmelin v Michigan (501 US 957 [1991]), petitioner requested the Court to extend the “so-called ‘individualized capital-sentencing doctrine,’ * * * to an ‘individualized mandatory life in prison without parole sentencing doctrine’ ” (id. at 995, quoting Sumner v Shuman, 483 US 66, 73 [1987]). The Court noted that its Eighth Amendment jurisprudence which created and clarified the procedural necessity of individualized capital sentencing had repeatedly rejected a comparable procedural requirement outside the capital context, “because of the qualitative difference between death and all other penalties” (Harmelin, 501 US at 995). The Court noted, “[t]he penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability * * *” (id., quoting Furman v Georgia, 408 US 238, 306 [1972] [Stewart, J., concurring]). Consequently, in order to ensure that death is not imposed in an arbitrary or capricious manner, a heightened standard of due process is applicable with regard to the sentencing procedures in death cases (see Gregg v Georgia, 428 US 153, 189 [1976]). Defendant’s attempt to press the need for similar procedural standards in noncapital cases falls short.

Due process protections in a noncapital case are in play only if an offender is sentenced on the basis of “materially untrue” facts or misinformation (People v Naranjo, 89 NY2d 1047, 1049 [1997]). Thus, from a due process perspective, sentencing is a critical stage of a criminal proceeding and must satisfy the requirements of due process (People v Outley, 80 NY2d 702, 712 [1993]). Due process in this regard, however, does not implicate the entire spectrum of criminal trial procedural rights (Gardner v Florida, 430 US 349, 358 [1977]). Rather, a sentencing scheme in a noncapital context must ensure that the information the sentencing court relies upon is “reliable and accurate” (Naranjo, 89 NY2d at 1049, quoting Outley, 80 NY2d at 712) and that the defendant has an opportunity to respond to the facts upon which the court may base its decision. New York’s sentencing scheme clearly comports with these due process requirements.

Pursuant to the Criminal Procedure Law a court must, with limited exceptions not relevant here, order a presentence investigation in any case where an individual is convicted of a felony (CPL 390.20 [1]). The report must relate the circumstances attending the commission of the offense, the particulars of the defendant’s background — including but not limited to social history, economic status, and defendant’s criminal record — and any other matter which the agency conducting the investigation deems relevant (CPL 390.30 [1]). At any time prior to the pronouncement of sentence, the prosecutor or defendant may submit to the court a written memorandum containing any information, including mitigating factors, deemed pertinent to the question of sentence (CPL 390.40 [1]). Moreover, before sentence is pronounced the court must afford the prosecutor, defense counsel and defendant an opportunity to make a statement with regard to any matter relevant to the question of sentence (CPL 380.50 [1]). Additionally, either before or after receiving that statement, the court may summarize the factors it considers relevant to the imposition of sentence. If the court chooses to summarize these factors then it must afford an opportunity to the defendant or his or her counsel to comment thereon (CPL 380.50 [3]). These procedural safeguards ensure that the information on which the court relies is accurate and that all involved have an opportunity to respond.

A sentencing hearing was held in this case. The hearing transcript reflects that defense counsel presented defendant’s concerns in a presentencing memorandum. While defense counsel logged numerous objections to the sentencing proceeding, at no time did he contend defendant’s sentence was based on materially untrue assumptions or misinformation, or that defendant lacked notice or opportunity to contest the facts upon which the court relied. Thus, the sentencing procedure as codified at CPL 400.27 (1) ensured defendant the process he was due.

We have considered defendant’s remaining contentions and to the extent they are preserved, find them without merit. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Smith, Ciparick, Rosenblatt, Graffeo and Read concur.

Order affirmed. 
      
      . In November of 1996, the People filed notice of their intention to seek the death penalty. On May 13, 1999, however, the People withdrew the notice of intention.
     
      
      . In his brief to this Court, defendant for the first time makes a separate, but limited, due process challenge. Defendant alleges that a court’s unlimited discretion to determine whether to impose life without parole or an indeterminate sentence between 20 and 25 years to life offends due process. Because defendant failed to raise this issue before County Court it is not preserved for our review (see People v Ahmed, 66 NY2d 307 [1985]; see also People v Gray, 86 NY2d 10 [1995]).
     
      
      . Defendant’s equal protection claim based on this same argument is subsumed by the due process claim (see Chapman v United States, 500 US 453, 465 [1991] [finding where an arbitrary sentencing distinction is alleged, “an argument based on equal protection essentially duplicates an argument based on due process”]).
     
      
      . While our State Constitution can afford a broader scope of protection with regard to individual rights and liberties than its federal counterpart (see People v P.J. Video, 68 NY2d 296, 302 [1986],' cert denied 479 US 1091 [1987]), defendant has preserved no grounds to impose any heightened due process procedures in the noncapital context.
     
      
      . Defendant also contends that the sentencing procedures that govern a persistent violent felon determination present a valid due process analogy for noncapital first-degree murder defendants. We disagree. Unlike the penalties for a persistent violent felon, life without parole is not an enhanced sentence; rather it is a legislative determination that the harm imposed by the substantive offense permits such a sentence.
     
      
      . At trial, defendant moved to dismiss the indictment and to suppress his oral and written statements as well as the .25 caliber handgun. County Court denied these motions. On appeal to the Appellate Division, in addition to renewing his due process claim and alleging an equal protection violation, defendant claimed that County Court: (1) erroneously denied his motion to dismiss the indictment; (2) erroneously denied his motion to suppress; (3) erred in failing to admit for its truth, under the excited utterance exception to the hearsay rule, a statement made by Melissa Davis; and (4) erred in failing to admit the prior statement of Davis for its truth because the prosecutor “opened the door” to it in his direct examination of Davis. The Appellate Division affirmed County Court’s rulings with regard to defendant’s first three claims and found the fourth unpreserved. We agree with the Appellate Division’s determinations.
     