Opinion
February 2, 1993
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
Defendant's contention that the court erred when it refused to give an accomplice charge is without merit. There was no evidence indicating that the claimed accomplice had planned, anticipated, or assisted in committing the crime (People v Jones, 73 N.Y.2d 902; People v Tucker, 72 N.Y.2d 849).
Defendant's contention that the court failed to provide instruction on the weak probative value of the evidence of flight (People v Swinson, 176 A.D.2d 613, 614, lv denied 79 N.Y.2d 864) is unpreserved. Nor did error arise out of the court's failure to provide the instruction sua sponte, or on the basis of the prosecutor's one reference to defendant's flight (People v Yaghnam, 135 A.D.2d 763, 764-765). Nor did defendant preserve his challenge to the court's instruction on the element of intent with respect to manslaughter in the first degree, submitted as a lesser included offense of murder in the second degree (People v Fraser, 181 A.D.2d 425, 426, lv denied 79 N.Y.2d 1000). Since the jury was instructed to consider lesser included offenses only if they had acquitted defendant of murder in the second degree, we conclude that, in any event, the jury never reached the manslaughter charge. Further, we decline to review in the interest of justice.
By failing to challenge the purported ineffectiveness of trial representation, pursuant to CPL 440.10, defendant has failed to present a reviewable record on appeal (People v Perez, 159 A.D.2d 219, lv denied 76 N.Y.2d 740). On the present record, we cannot conclude that defendant's counsel was incompetent under the standards set forth in People v Baldi ( 54 N.Y.2d 137, 147). We have considered defendant's remaining contentions and find them to be without merit.
Concur — Murphy, P.J., Wallach, Ross and Asch, JJ.