Opinion
May 29, 1990
Appeal from the County Court, Westchester County (Martin, J.).
Ordered that the judgment is affirmed.
The defendant's contention that he was denied his constitutional right to effective assistance of counsel, which is based upon the fact that his attorney failed to make a pretrial omnibus motion and to request that the trial court instruct the jury as to the affirmative defense to robbery in the first degree set forth in Penal Law § 160.15 (4), is without merit. These alleged failures can be legitimately explained as strategic in nature, and thus may not be equated with ineffectiveness (see, People v. Rivera, 71 N.Y.2d 705, 709; People v. Baldi, 54 N.Y.2d 137). In any event, "the evidence, the law and the circumstances of [this] case, viewed together and as of the time of representation, reveal that meaningful representation was provided" (People v. Satterfield, 66 N.Y.2d 796, 798-799). Therefore, the defendant was not denied effective assistance of counsel.
Also without merit is the defendant's contention that the destruction of the stenographic minutes of the voir dire and the pretrial motions effectively deprived him of his "fundamental right" to appellate review (see, People v. Montgomery, 24 N.Y.2d 130, 132). Those minutes were properly destroyed pursuant to Judiciary Law § 297 (see, People v. Mirenda, 57 N.Y.2d 261, 267; People v. Alston, 134 A.D.2d 433, 435). In any event, the defendant has failed to meet his burden of establishing "that a legal issue exists with regard to his appeal which cannot be resolved by the record as reconstructed" (People v. Johnson, 145 A.D.2d 572, 573; People v. Glass, 43 N.Y.2d 283).
The defendant's contention that the trial court erred in sua sponte reducing one of the counts of robbery in the first degree with which he was charged to robbery in the second degree is unpreserved for appellate review (see, People v. Ford, 62 N.Y.2d 275; People v. Gonzalez, 150 A.D.2d 603), and, under the circumstances of this case, we decline to review it in the interest of justice.
Finally, the defendant's contention that the sentence imposed is excessive is without merit (see, People v. Suitte, 90 A.D.2d 80). Mangano, P.J., Brown, Sullivan and Balletta, JJ., concur.