People v. McNair (294 A.D.2d 952, 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.

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 [1]), 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 AD2d 180, 181, lv denied 95 NY2d 906, lv denied 96 NY2d 736). The sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.