Opinion
KA 99-01268
May 3, 2002.
Appeal from a judgment of Supreme Court, Erie County (Buscaglia, J.), entered September 8, 1999, convicting defendant after a jury trial of, inter alia, murder in the second degree.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
FRANK J. CLARK, DISTRICT ATTORNEY, BUFFALO (JOSEPH KILBRIDGE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, SCUDDER, AND KEHOE, JJ.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
On appeal from a judgment convicting him following a jury trial of murder in the second degree (Penal Law § 125.25), attempted murder in the second degree (§§ 110.00, 125.25 [1]) and other offenses, defendant contends that we should remit this matter to Supreme Court for a hearing to determine whether he was denied effective assistance of counsel based on defense counsel's decision to request submission of the defense of justification (see § 35.15) but not the affirmative defense of extreme emotional disturbance ( see § 125.25 [1] [a]) to the jury. The proper procedural vehicle to review defendant's contention, however, is a CPL 440.10 motion "so that the record could be expanded with respect to the reasons for trial counsel's strategic choices" ( People v. Lemma, 273 A.D.2d 180, 181, lv denied 95 N.Y.2d 906, lv denied 96 N.Y.2d 736). The sentence is not unduly harsh or severe.