ALBANY - Lawyers who prosecuted the lone man left on New York's death row told the state's top court Monday he should be executed as they argued a case that has challenged the sweep of the court's landmark decision to invalidate part of the death penalty statute.

The state Court of Appeals effectively halted death penalty cases in 2004 when it found a constitutional shortcoming in the provision of the law spelling out how trial judges instruct juries during sentencing. But prosecutors who won a death sentence against John Taylor for the brutal murders of five Wendy's workers in Queens claim that ruling does not affect Taylor's sentence.

The seven appeals judges were being asked essentially to limit the scope of their decision overruling the death sentence against Stephen Lavalle, which has led to reduced sentences for everyone sentenced to death in New York since 1995 except Taylor.

Prosecutors from Queens claimed the invalidated provision of the 1995 law was constitutionally applied in the Taylor case. Donna Aldea of the Queens district attorney's office told the judges they need not overrule themselves, but clearly define a key part of the Lavalle decision.

“There would be no appearance of impropriety if the court unanimously agrees that the final sentence in Lavalle, in fact, went too far,” Aldea said, “that that statute while unconstitutional in some applications, is nonetheless constitutional.”

But Chief Judge Judith Kaye asked Aldea if prosecutors were suggesting that the judges say “we didn't mean it” in the Lavalle decision. Kaye noted archly that prosecutors referred to the court's Lavalle ruling as unnecessary, inappropriate and incorrect.

“Those are fighting words,” Kaye said.

The judges also posed sharp questions for the Capital Defender Office lawyers representing Taylor. Kevin Doyle told the judges that the death penalty is discriminatory and “injustice waiting to happen.” Judge Robert Smith interrupted Doyle's argument to ask what should be done to heinous criminals like Oklahoma City bomber Timothy McVeigh and Osama bin Laden.

“Retribution is not a legitimate penological goal in New York,” Doyle replied, particularly considering growing opposition to capital punishment.

Looking at Taylor's case, defense attorney Susan Salomon argued that it made no sense to make an exception to the capital punishment law just for Taylor.

“You can't have a death penalty for one, simply for John Taylor,” Salomon told the judges.

New York has yet to execute a criminal since reinstating the death penalty in 1995.

Taylor, 43, was sentenced to die by lethal injection after his conviction for the execution-style killings of five employees of a Wendy's restaurant in Queens in 2000. He and an accomplice forced seven workers into a walk-in refrigerator in the basement, bound their hands, blindfolded them, forced them to kneel and shot each in the head. Only two survived. A co-defendant with mild retardation was sentenced to life in prison without parole.

Taylor's fate has been in limbo since the court overturned the death sentence against LaValle, who killed a school teacher in Long Island. The judges found that part of the law was unfair to defendants because it required judges to tell jurors that if they deadlocked, the court would sentence the defendant to a parole-eligible life term. Critics said the provision might make jurors more likely to apply the death penalty.

But the Queens District Attorney's office argues that the trial judge in Taylor's case, aware of the statute's possible shortcoming, compensated for the defect in his instructions to the jury. Local prosecutors contend that the court did not strike down the state's death penalty statute in its 2004 ruling, but only LaValle's death sentence.

Taylor was not present in court Monday. He remains imprisoned in a 7-foot-by-9-foot cell 160 miles north of Albany at the Clinton Correctional Facility near the Canadian border. He was one of seven inmates assigned to the prison's Unit for Condemned Persons, and the only one left on death row since the others have been re-sentenced to lesser terms.

The Republican-led Senate has taken up new legislation intended to return capital punishment to New York and Gov. Eliot Spitzer supports reinstatement of the death penalty for killing police and other horrendous crimes. But Democrats in charge of the Assembly have declined to act on the bills. Two of the judges who were in the majority in the 4-3 Lavalle decision have since been replaced by judges Eugene Pigott and Theodore Jones. The court is expected to make its decision on the Taylor case in a month or two.