People v. McNair

Appellate Division of the Supreme Court of New York

People v. McNair

294 A.D.2d 952, 741 N.Y.S.2d 786, 2002 N.Y. App. Div. LEXIS 4561

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 3, 2002

StatusPublished

Cited by2 cases

This text of 294 A.D.2d 952 (People v. McNair) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. McNair, 294 A.D.2d 952, 741 N.Y.S.2d 786, 2002 N.Y. App. Div. LEXIS 4561 (N.Y. Ct. App. 2002).

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Opinion

—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 [953]*953sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.

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—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 [953]*953sentence is not unduly harsh or severe. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.

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Bluebook (online)

294 A.D.2d 952, 741 N.Y.S.2d 786, 2002 N.Y. App. Div. LEXIS 4561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcnair-nyappdiv-2002.

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