Opinion
2617.
Decided May 6, 2004.
Order, Supreme Court, Bronx County (John S. Moore, J.), entered on or about January 2, 2003, which denied defendant's motion to vacate a judgment, same court and Justice, rendered March 7, 2000, unanimously affirmed.
Laura R. Johnson, The Legal Aid Society, Brooklyn (Susan Epstein of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Zaharah R. Markoe of counsel), for respondent.
Before: Buckley, P.J., Andrias, Sullivan, Friedman, Gonzalez, JJ.
The court properly denied defendant's motion to vacate the judgment pursuant to CPL 440.10 on the ground of ineffective assistance of counsel ( see People v. Satterfield, 66 N.Y.2d 796, 799-800). Even assuming that trial counsel's failure to request submission of manslaughter in the second degree or criminally negligent homicide as lesser included offenses was not a strategic choice, we find that counsel's omission did not deprive defendant of a fair trial or affect the outcome ( see People v. Hobot, 84 N.Y.2d 1021, 1024; People v. Alicea, 229 A.D.2d 80, 89-90, lv denied, 90 N.Y.2d 890; see also Strickland v. Washington, 466 U.S. 668). On defendant's direct appeal, this Court concluded that defendant's guilt of murder in the second degree was established at trial by overwhelming evidence ( People v. Kennedy, 294 A.D.2d 283, lv denied 98 N.Y.2d 698). There is no reason to believe that the jury would have convicted defendant of anything less than intentional murder no matter what lesser offenses had been submitted ( see People v. Ruiz, 223 A.D.2d 418, lv denied 88 N.Y.2d 853). Moreover, the court did submit first-degree manslaughter, and the jury rejected that option when it convicted defendant of murder. It is well settled that under such circumstances, failure to submit the more remote lesser offenses of second-degree manslaughter and criminally negligent homicide would be deemed harmless ( see e.g. People v. Vega, 155 A.D.2d 632, lv denied 75 N.Y.2d 819).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.