People v. Felton

239 A.D.2d 120, 657 N.Y.S.2d 34, 1997 N.Y. App. Div. LEXIS 4438

Opinion

Order, Supreme Court, Bronx County (John Byrne, J.), entered March 7, 1995, which denied defendant’s motion to vacate the judgment of the Supreme Court, Bronx County (Fred Eggert, J.), rendered June 7, 1982, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 18 years to life, unanimously affirmed.

The motion court was procedurally barred from considering the merits of defendant’s CPL 440.10 motion. Sufficient facts appeared on the record to have permitted appellate counsel to raise the issue of written jury instructions on defendant’s 1984 direct appeal (see, CPL 440.10 [2] [c]). Since appellate counsel made a tactical decision not to raise this contention and to focus on several other significant arguments, defendant was not denied effective appellate counsel (Jones v Barnes, 463 US 745, 754), as we have already held in denying defendant’s coram nobis motion. Nevertheless, since appellate counsel had the opportunity to raise the issue, his failure to do so for whatever reason must be considered "unjustifiable” for purposes of the statute (see, People v Byrdsong, 234 AD2d 468). Defendant’s remaining arguments are without merit. Concur—Sullivan, J. P., Rosenberger, Wallach, Rubin and Tom, JJ.