Opinion
October 23, 1989
Appeal from the Supreme Court, Queens County (Berkowitz, J.).
Ordered that the judgment is affirmed.
The record does not support the defendant's claim that his trial counsel's failure to request submission to the jury of the crime of criminal trespass in the third degree as a lesser included offense of burglary in the second degree rendered counsel ineffective, thereby requiring a new trial.
We are satisfied that the defendant received meaningful representation and was not denied a fair trial (see, People v Satterfield, 66 N.Y.2d 796, 798; People v Baldi, 54 N.Y.2d 137). The determination to refrain from requesting the submission of any lesser included offense was consistent with the testimony of the defendant and the defense witness which clearly evinces an "all or nothing" defense strategy. Such a strategy has been sanctioned by the Court of Appeals (see, People v Lane, 60 N.Y.2d 748).
Furthermore, the defendant's claim that the trial court erred in failing to submit, sua sponte, the lesser charge is meritless. In the absence of such a request "the court's failure to submit such offense does not constitute error" (CPL 300.50; see also, People v Hunter, 141 A.D.2d 847, 848). Brown, J.P., Lawrence, Kooper and Spatt, JJ., concur.