People v. McNair

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