Defendant moves for an order striking the notice of intent to seek the death penalty filed on January 15, 2004 pursuant to CPL § 250.40 (2), or, in the alternative, requiring the District Attorney to withdraw the notice. Defendant contends that the Court of Appeals' decision in People v La Valle, 2004 NY LEXIS 1575, where the court found the deadlock instruction mandated by CPL 400.27 (10) unconstitutional, and directed that "cases in which death notices have been filed may go forward as noncapital first degree murder prosecutions"(People v La Valle, 2004 NY LEXIS 1575 at *72, requires such an order. Defendant does not support his contention with any argument. Rather, defendant cites colloquy during voir dire in a capital case pending in Broome County, People v Parker, Indictment Number 02-503, on June 24, 2004, reflecting the comments of the court and counsel upon learning of the Court of Appeals decision in La Valle. The court there denied a motion to strike the notice on the ground that the Court of Appeals decision had, in effect, struck the notice in all pending cases where it had been filed.

La Valle does not require, or authorize, this court to grant defendant's motion. The Court went beyond ruling that the deadlock instruction was unconstitutional, and instructed the lower courts on how to proceed in pending cases where a notice of intent to seek the death penalty had been filed: "cases in which death notices have been filed may go forward as noncapital first degree murder prosecutions"(People v La Valle, 2004 NY LEXIS 1575 at *72) . The Court could have, but did not, require that the notice be struck. Parker is not persuasive authority for [*2]defendant's position as the court there denied the motion to strike.

Defendant's motion is denied.

This constitutes the decision and order of the court.

Dated October 7, 2004

ENTER

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J.S.C.